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Physicians for Human Rights - Neither Justice Nor Treatment, 2017

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Physicians for Human Rights

Neither Justice
Nor Treatment
Drug Courts in the United States
June 2017

There are more than 3,100 drug courts operating in the
United States. But while the courts’ proponents say they
reduce recidivism for people with substance use disorders,
critics say the system abuses due process, often mandates
treatment for people who don’t actually need it – people
without drug dependence – and fails to provide quality care
to many who do.
Physicians for Human Rights (PHR) assessed the availability
and quality of substance use disorder treatment through
drug courts in three states – Florida, New Hampshire, and
New York – and found major obstacles in all three states.
Overall, PHR found that drug courts largely failed at
providing treatment to those who truly needed it, and filled
up limited treatment spaces with court-mandated patients
who didn’t always need the care.
In many cases, court officials with no medical background
mandated inappropriate treatment, or mandated treatment
for people who didn’t need it. In all cases, the functioning
and mandate of the drug courts posed significant human
rights concerns.
	 	Contents
	 3	 Executive Summary
	 5	 Methodology and Limitations
	 6	Background
	 8	 Research Findings
	20	 Human Rights, Health Care,
and Criminal Justice
	21	 Conclusion and Recommendations
	22	 Endnotes

Cover: A sister and brother, both
recovering from heroin addiction,
appear before a judge during a
session of drug court at the Will
County Courthouse in Joliet, Illinois.
Photo: Daniel Acker/Bloomberg via
Getty Images.

Acknowledgements
This report was written by Marianne Møllmann, LLM, MSc, director of research and
investigations at Physicians for Human Rights (PHR) and Christine Mehta, researcher at
PHR. The research was carried out by the authors, assisted by Dorit Heimer, JD, research
fellow at PHR. The report benefitted from review by PHR staff, including DeDe Dunevant,
director of communications, Donna McKay, executive director, Susannah Sirkin, MEd,
director of international policy and partnerships, and Homer Venters, MD, director of
programs. Several PHR interns contributed invaluable research assistance for this report,
including Anne Jacobs and Silvia Raithel.
The report benefitted from external review by Rebecca Schleifer, JD, MPH, visiting fellow at
Yale University Global Health Justice Partnership.
The report was reviewed, edited, and prepared for publication by Claudia Rader, MS,
content and marketing manager.
Support for this report was provided by the Open Society Foundations.

Executive Summary
Richard, a 37-year-old who was sentenced to long-term residential
treatment in New York for marijuana possession, was prescribed
an inappropriate treatment plan by a drug court official with no
medical background; according to his doctor, Richard has no
addiction problem and doesn’t need treatment. A New Hampshire
man who was desperate for drug treatment and rehab was refused
admission to a treatment program because the prosecutor was
determined to punish him with a prison sentence. His lawyer
said the man became suicidal. And a Florida man who had
struggled with heroin addiction for years was forced to detox in
jail - a harrowing experience - because there was no room for him
in Gainesville’s only detox facility. “I want to wait for my spot in
detox,” he begged the judge, unsuccessfully, before being taken
into custody. “I’ve been wanting to get help. I’ve detoxed in jail
before … they don’t care if I die.”
All three men were swept up in U.S. drug courts, specialized
courts within the criminal justice system set up to provide
alternative sentencing options – treatment instead of jail or prison
time – for people charged with criminal behavior linked to drug
possession, sale, or addiction. The first courts were opened in 1989
to ease dockets and jails that were overflowing as a result of strict
federal and state laws passed in the 1980s in an attempt to reduce
drug supply and consumption.
Almost three decades later, there are more than 3,100 drug
courts operating in the United States. But while the courts’
proponents say they reduce recidivism for people with substance
use disorders, critics say the system abuses due process, often
mandates treatment for people who don’t actually need it – people
without drug dependence – and fails to provide quality care to
many who do.
Physicians for Human Rights (PHR) assessed the availability and
quality of substance use disorder treatment through drug courts
in three states – New York, New Hampshire, and Florida , chosen
for the diversity of their drug court and health system approaches
– and found major obstacles to quality evidence-based treatment
for drug court participants in all three states. Overall, PHR found
that drug courts largely failed at providing treatment to those who
truly needed it, and filled up limited treatment spaces with courtmandated patients who didn’t always need the care. In many
cases, court officials with no medical background mandated
inappropriate treatment not rooted in the evidence base, or
mandated treatment for people who didn’t need it. In all cases,
the functioning and mandate of the drug courts posed significant
human rights concerns.

than deviant, drug court participants were often punished for
relapsing, missing therapy appointments, or otherwise failing to
follow court rules.
One key concern motivating this research was whether drug
courts were able to appropriately diagnose and facilitate
treatment for people with substance use disorders who are in
conflict with the law. We found that, in many cases, they are not.
Diagnosis and initial treatment plans for drug court participants
were often developed by people with no medical training or
oversight, at times resulting in mandated treatment that was
directly at odds with medical knowledge and recommendations.
The most egregious example of this was the refusal, delay, or
curbing of medication-assisted treatment (MAT) (also known as
substitution or replacement therapy) to people with opioid use
disorders, despite evidence that treatment for such disorders
in many cases requires long-term – sometimes permanent
– medication. Some drug courts also prevented participants
from accessing or staying on medically prescribed treatment
for anxiety, Attention Deficit Hyperactivity Disorder, and other
chronic health problems. Ironically, the form of MAT that
appeared to have the most support in many of the drug courts
visited – an injectable form of naltrexone, Vivitrol – has the
weakest evidence base of all Food and Drug Administrationapproved treatments for opioid dependence.
Most drug courts visited by PHR operated in communities where
the understanding of addiction treatment, including amongst
treatment providers, varied widely. This, however, cannot justify
a system where non-clinical staff drive treatment decisions.
PHR found that drug court teams at times dismissed legitimate
medical opinion, with potential harm to the patient. Even where
drug court team members were knowledgeable about best
practices for evidence-based treatment and mandated appropriate
treatment, some court participants could not receive the care they
needed because they didn’t have sufficient insurance coverage
and could not afford the treatment otherwise. Participants in
Florida, one of 19 states that did not choose to expand Medicaid,
could not use Medicaid to access treatment. Even in New York,
which did undertake Medicaid expansion, one man said he could
not get methadone treatment for his opioid-addicted wife because
she had the wrong kind of Medicaid coverage, and treatment
center staff spoke to complicated application processes and
uncertainty that was particularly hard to navigate for people
suffering from addiction.

At the most basic level, PHR found that access to quality
treatment was hampered by the inherent tension between a
punitive criminal justice logic and therapeutic concern for
drug court participants as patients. In fact, despite the stated
intention of drug courts to treat people who use drugs as ill rather

Another obstacle was the serious lack of quality treatment options
in the communities served by drug courts. In communities
visited by PHR where evidence-based treatment theoretically was
available, all residential, in-patient, and detox treatment facilities
had waiting lists. For people seeking treatment voluntarily
without a court mandate, waiting lists could be months. As a
result, for many people with problematic drug use, PHR found

Neither Justice Nor Treatment

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Executive Summary
continued

that drug courts were indeed the most viable route to treatment,
giving at least some people access to care they otherwise would
not be able to obtain. This creates a perverse incentive to commit
a crime in order to access care, something not lost on several drug
court participants.
But this access to care came at the cost of participants waiving
their rights. In general, PHR found that the delivery of essential
health care and treatment through the criminal justice system
raised several human rights concerns, including, specifically,
questions regarding patient confidentiality and autonomy, dual
loyalty, privacy, and the ability of the patient to give meaningful
consent to treatment.
U.S. federal law specifically protects the confidentiality of drug
and alcohol abuse treatment and prevention records, but provides
broad exceptions to this rule. Notably, while treatment providers
usually are covered by federal confidentiality regulations, drug
court team members are exempt. Moreover, all drug court
participants were asked to waive patient-doctor confidentiality as
a condition for drug court participation, and PHR observed patient
information openly discussed in court, even at times without
relevance to the person’s drug use, addiction, or alleged criminal
behavior.
International human rights law protects the right to physical
autonomy, including the right to refuse medical treatment.
This principle is routinely flouted in drug courts. The treatment
provided in drug courts is touted by proponents as voluntary,
because participants are “free” to choose jail or prison over drug
court participation. However, many participants PHR spoke to
felt forced to enter the drug court treatment programs to avoid
lengthy legal proceedings, and, in order to do so, were required
to plead guilty to charges that had never been investigated.
The criminalization of possession of certain drugs for personal
consumption also meant that many people who got caught up in
the criminal justice system – and ended up in drug courts – did
not suffer from substance use disorders or didn’t want treatment.
In some cases – such as, for example, in Florida – the law explicitly
allows for the involuntary commitment and treatment of people
by reference to harm or criminal behavior that hasn’t happened
yet.
Human rights concerns are thus particularly relevant for drug
courts, as these courts blur the line between voluntary and
coerced treatment, and compel participants to waive the right
to confidentiality. Furthermore, most drug courts operate with
regulations that subject medical expertise and advice regarding
treatment to prosecutorial oversight and potential veto, raising
questions about a person’s ability to access impartial evidencebased care. Even where courts did not actively violate human
rights protections of their participants, the regulatory set-up
constantly threatened such violations.

Neither Justice Nor Treatment

There are also other reasons to be skeptical of the criminal justice
system as deliverer of treatment for the growing part of the U.S.
population that suffers from addiction. Certainly, it is not the
most cost-effective way to facilitate access to care, whether the
costs of punitive sanctions and supervision are borne by drug
court participants or the state. Either way, treatment without jail
and parole would be cheaper. Moreover, improving social services
(case management) and insurance, while combatting stigma
around drug use, would have at least an equally beneficial and
certainly more direct effect on people with serious substance use
disorders.
The criminal justice system’s conflation of drug possession and
personal use with clinical need for care has done nothing to
ensure treatment for those who truly need it. Ultimately, people
with substance use disorders who get treatment through the
criminal justice system are still treated as criminals, and the
symptoms of their illness punished as if the illness itself were a
crime.
Until the criminal justice system delinks possession of drugs for
personal use from criminal behavior such as larceny, theft, and
assault, it will be particularly hard to deliver quality care to the
high-need population that drug courts purport to serve.
An approach more respectful of human rights and medical
ethics demands that the Department of Justice prioritize harm
reduction initiatives over criminal justice approaches to drug use.
Further, Congress should enact legislation that expands access
to voluntary care for people with substance use disorders, and
insurance companies and Medicaid should be required to cover
all evidence-based care for those who need it.

People with substance use
disorders who get treatment
through the criminal justice
system are still treated as
criminals, and the symptoms
of their illness punished as if
the illness itself were a crime.

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Methodology and
Limitations
Three Physicians for Human Rights (PHR) researchers conducted
interviews, both in person and over the phone, with health care
professionals, social workers, judges, lawyers, drug court staff,
and drug court participants, predominantly in three U.S. states:
Florida, New Hampshire, and New York.
These three states were chosen to provide an overview of drug
courts in states with different health care systems, and with
different histories of drug court engagement and funding. Florida
has a mature system of drug courts, with the very first drug court
in the United States established there in 1989, and operates in a
context of limited funding for health care, in particular for people
with substance use disorders. As of April 2017, there were 95 drug
courts in Florida.1 New York equally has decades of history with
drug courts, and has recently passed legislation to ensure access
to medication-assisted treatment. There were 141 drug courts
in New York State as of January 2017.2 New Hampshire has the
newest drug court system, yet is one of the states with the highest
overdose rates in the country. As of April 2017, there were seven
drug courts in New Hampshire.3 New York and New Hampshire
opted to expand Medicaid through the Affordable Care Act, thus
theoretically expanding access to voluntary treatment. Florida,
however, has not. We anticipated that these diverse contexts
would give a good overview of barriers to treatment faced in
different parts of the country.
PHR observed proceedings of several drug courts, including
closed meetings of drug court team evaluations of drug court
participants. Researchers also interviewed representatives from
national medical associations, associations of people who use
drugs, U.S. and international addiction experts, researchers,
and others with professional knowledge of drug court history
and functioning, addiction medicine, criminal justice diversion
programs, and substance use disorders. These interviews were
carried out between July 2016 and March 2017.
In total, we conducted approximately 170 interviews, including
41 interviews with drug court participants, and observed court
proceedings directly in 15 drug courts.
Respondents were selected through a convenience sample.
We contacted all registered treatment providers working with
drug court participants in each state for whom information
was available on official websites and listings, and spoke to those
who indicated interest. For Florida and New Hampshire, we
contacted all drug courts. In New York, the statewide drug court
coordinator denied PHR permission to speak directly with drug
court staff, so we instead contacted public defenders, police
chiefs, prosecutors, and others working directly with drug courts.
In all three states, we reached out to harm reduction specialists
and drug court evaluators.

Neither Justice Nor Treatment

The research methodology was designed to surface research
questions and concerns that merit further investigation. Given
the diversity of drug courts and contexts, the results may not
be generalizable or representative of all drug courts. In New
Hampshire and Florida, the statewide drug court coordinators
encouraged full participation in the study by drug court teams,
leading to a higher participation rate than in New York State, where
we were not permitted to interview New York state drug court
staff. Likewise, New Hampshire and Florida authorities shared
data and information with PHR, whereas New York authorities
did not respond to several requests for data beyond an initial
acknowledgement that the request had been received.
For all interviews, PHR researchers obtained informed oral consent
following a detailed explanation of PHR, the purpose of the
investigation, and the potential benefits and risks of participation.
Interviews were conducted using semi-structured interview
instruments developed by PHR medical and legal experts and
approved by PHR’s Ethics Review Board (ERB), a body established in
1996 to ensure the protection of individual witnesses interviewed
during the course of investigations and research. PHR’s ERB
regulations are based on Title 45 CRF part 46 provisions, which are
used by academic Institutional Review Boards.
In addition, PHR researchers reviewed existing research on drug
courts, access to treatment for substance use disorders inside and
outside the criminal justice system, and peer-reviewed research
on treatment for substance use disorders. We reviewed drug court
regulations, state evaluations, handbooks, and manuals shared by
the drug court coordinators from New Hampshire and Florida, and
those materials available to the public online in all three states.
This report is about the availability and quality of substance use
disorder treatment through drug courts. Some participants PHR
studied were diverted into drug courts because of alleged illegal
use of legal substances (e.g. driving under the influence of alcohol,
or misuse of prescription drugs). Others were alleged to have
committed crimes thought to be related to the possession, sale,
purchase, or use of substances that are considered “illicit” (e.g.
stealing to fund a drug habit). For the purposes of this report, our
concern is whether drug courts were able to appropriately diagnose
and facilitate treatment for substance use disorders, whatever the
substance. While the delivery of health care through the criminal
justice system raises human rights concerns, the overall adverse
human rights consequences of the criminalization of personal
substance use have been covered elsewhere and are not addressed
in this report.4
The names of all drug court participants have been changed in the
interest of their privacy. Where requested, the names of treatment
providers and other drug court actors have been withheld. PHR is
deeply grateful to the many individuals who took the time to share
their expertise, concerns, and deliberations with us.

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Background
Drug Policy in the United States

History of U.S. Drug Courts

Since the 1980s, U.S. drug policy has sought to reduce drug
supply and consumption primarily through law enforcement,5
resulting in strict and strictly enforced criminal laws punishing
the possession of even small amounts of illegal drugs. An
overview of the criminal law provisions covering personal drug
possession published in October 2016 noted that “all US states
and the federal government criminalize possession of illicit
drugs for personal use” and that “in 42 states, possession of small
amounts of most illicit drugs other than marijuana is either
always or sometimes a felony offense.”6

Drug courts (sometimes called treatment courts) are specialized
courts within the criminal justice system, set up to provide an
alternative to incarceration for people arrested for offenses where
problematic drug use is considered an underlying cause of the
crime. The first drug court was established in Miami, Florida in
1989 in an effort to reduce overflowing dockets and jails.13

The narrative in support of criminalizing personal drug use
assumes that abstinence from illegal drugs is imperative for
the health of the individual and for society as a whole.7 Law
enforcement strategies in the United States have integrated this
assumption, most notably with the rise of theories like “broken
windows policing,” which have led to policing practices that
target low-level crimes deemed to be “anti-social,” including
drug possession for personal use, especially marijuana.8
The push for abstinence has not been particularly successful.
Studies show that “abstinence” as a policy option requires a
substantial investment in treatment and social services to effect
a reduction in drug use.9 From a public health perspective, some
people cannot or will not choose to stop using drugs, and forcing
them to do so may put them at risk of more harm, including
overdose if they resume using after detoxing. Moreover, many
addiction specialists note that the majority of people who use
drugs do not develop a drug dependency or addiction.10
Over the past five to 10 years, some jurisdictions – including the
federal government – have started to invest in harm-reduction
interventions,11 which are not focused on reducing drug use
but rather on reducing the harm of problematic drug use on
individuals and society.12 In addition, some jurisdictions have
increasingly invested in treatment through court-supervised
treatment options, thereby blurring the lines between law
enforcement and treatment and giving rise to the proliferation
of drug courts.

Neither Justice Nor Treatment

Most drug court programs loosely resemble community-based
probation programs but include intensive court supervision
(usually presided over by a judge), drug testing, and a mandated
“treatment” program. Under the drug court model, judges
and other court personnel monitor a participant’s treatment
and program compliance, and judges can impose immediate
sanctions if participants fail to comply with the program’s
requirements.14
There are several types of specialized drug courts, including adult,
juvenile, family dependency, felony, misdemeanor, and pre-plea
or post-plea. In many cases, participants must plead guilty to the
crime they are charged with in order to be diverted to the drug
court, with the understanding that charges will be reduced or
dismissed if they successfully complete all conditions of the court
program. As of mid-2015, there were 3,133 drug courts operating in
the United States, the majority of which target adults.15
Drug courts vary substantially across a number of areas:
eligibility criteria, target population, treatment options, sanctions
and incentives schedule, success criteria, and funding. However,
most share the stated dual objective of reducing incarceration and
facilitating access to treatment for people whose drug use is an
underlying cause of criminal behavior. The National Association
of Drug Court Professionals (NADCP), a not-for-profit organization
that has advocated for the drug court model since 1994, adds an
implied financial objective in its evaluation of why it believes the
drug court model works: “By keeping drug-addicted offenders
out of jail and in treatment Drug Courts have been proven to
reduce drug abuse and crime while saving money.”16 Many
courts insist that people who have been arrested for drug-related
offenses stop using drugs – including legal drugs such as alcohol
and prescribed medication – as a condition for the removal of
court supervision and probation.17 In fact, the NADCP highlights
ensuring abstinence as one of 10 key components of the U.S. drug
court model.18

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Background
continued

In 2015, the NADCP introduced national standards for best
practices in drug courts for the first time. The organization
acknowledged that its initial focus had been to grow the model
even before it had been deemed successful. In an article published
in the Pacific Standard Magazine, then NADCP Director of
Standards (now Chief Operating Officer) Terrence Walton was
cited as saying: “The aim of the first couple [of] decades of drug
courts was to spread drug courts. We said, ‘We want a drug court
in reach of every individual in need.’ Well, now that we have
almost 3,000 drug courts across the country and in every single
state, we want a drug court that works in reach of everyone in
need.”19
Now, the drug court model has been one of the most heavilystudied justice mechanisms in the United States.20 Most
evaluations have found that drug courts are more cost-effective
than conventional incarceration but have not looked at a
comparison with community-based probation or indeed at the
cost associated with quality evidence-based treatment.21 Further,
most studies deal with the question of how well drug courts are
implemented based on the evolution of best practices by the
NADCP. There is little data on the quality of treatment provided,
or on drug courts’ effects on the participants’ long-term recovery
from problematic drug use, or social relationships, employment,
and general health.22 No drug court evaluation has compared the
courts to public health and harm-reduction approaches.

The Opioid Crisis: An Impetus for Change
The United States has experienced a rise in opioid use and
overdose deaths since the mid-2000s,23 which prompted Congress
to pass the Comprehensive Addiction and Recovery Act (Public
Law No. 114-198) in 2016.24 The law provided for expanded access
to naloxone (used to prevent opioid overdose),25 encouraged
awareness-raising around the misuse of opioid-based pain
medication, and directed the Department of Justice to fund
state and local initiatives that expand treatment alternatives to
incarceration and support collaboration between criminal justice
and treatment providers, including drug courts.26 The law also
directed the White House Office of National Drug Control Policy
to expand grants to allow states and local governments to address
a spike in opioid and methamphetamine usage and overdose.27
This office has been targeted for elimination by the Trump
administration.28
Some states were prompted by the rise in overdose deaths to
change their approach to drug use, including through increased
funding for drug courts,29 and – less frequently – pre-booking
or pre-arrest diversion initiatives such as the Law Enforcement
Assisted Diversion programs in King County, Washington; Santa
Fe, New Mexico; and Albany, New York;30 and the “angel” program
in Gloucester, Massachusetts.31 At the same time, many states and
counties remain resistant to diversion and alternative sentencing
programs, fearing that public safety may be compromised.
This is the climate in which drug courts are being promoted as
fulfilling both the public safety objective of the criminal justice
system and the urgent need for treatment highlighted by the
increase in opioid use and overdoses.
In this report, we evaluate the treatment element of that equation.

“Now that we have almost
3,000 drug courts across
the country and in every
single state, we want a drug
court that works in reach
of everyone in need.”
A police officer holds a bag of confiscated heroin in Gloucester,
MA, in 2016, where the so-called “Angel Program” diverts people
with problematic drug use away from the criminal justice system
without arrest or threat of prison.
Photo: John Moore/Getty Images

Neither Justice Nor Treatment

Terrence Walton, Chief Operating Officer,
National Association of
Drug Court Professionals

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Research Findings
Participants in the drug courts visited by Physicians for Human
Rights (PHR) faced multiple barriers to accessing quality,
evidence-based diagnosis and care. Barriers varied considerably
between states, and even between counties, and ranged from
appropriate diagnosis and care being completely unavailable,
to care being insufficient, financially inaccessible, inadequately
supported by evidence, or uncovered by insurance, including, at
times, Medicaid. Some of the interventions that have proven most
effective in setting people with substance use disorders on the
road to recovery – such as adequate case management, support
for stable housing, and steady employment, as well as medicationassisted treatment (MAT) where appropriate – were either not
available at all, or were not available in sufficient quantity. The
very population meant to benefit from the treatment provided
through the drug courts – people with a high level of addiction at
escalated risk of re-offending – face additional barriers in even
participating in these courts in some jurisdictions because of
funding constraints as well as prosecutorial wariness of allowing
“high-risk, high-need” individuals to participate in treatment.32
PHR’s research also documented a number of systemic issues that
directly undermined the effectiveness of drug courts as currently
set up. A central drug court premise – people who commit crimes
to sustain problematic drug use should be treated as sick, not
criminal – did not always permeate the court proceedings. In
one assessment of drug courts, a key conclusion was that “the
particular treatment methodology used in drug courts [did]
not attempt to separate punishment from treatment but rather
conflate[d] the two,” and that courts would not be effective until
this tension was resolved.33

Barriers to High Quality Evidence-Based
Diagnosis and Care
The treatment offered in drug courts has taken various shapes
over time and across jurisdictions. In the courts visited and
observed by PHR, it did not always include access to medicallyassisted treatment, psychosocial therapy or counseling, or a
level of treatment appropriate to the severity of the addiction
manifested in each drug court participant – all approaches known
to be effective.
This discrepancy between evidence-based treatment for
substance use disorders and the treatment provided to drug
court participants had various roots: inadequate or unfunded
treatment options (also outside of the courts); inappropriate plans
mandated by courts without reference to medical science and
evidence; inappropriate surveillance or probation responsibilities
for treatment providers; lack of ancillary services like housing
and employment; deficient insurance coverage; and treatment
centers providing treatment without reference to evidencebased practices. People who use drugs who are considered
high-need and high-risk – ostensibly the population drug courts
are primarily set up to serve – encounter particular problems in
accessing appropriate treatment through drug courts, facing both
regulatory and financial obstacles. Each of these elements are
explored below.

In PHR’s research, drug court participants who tested positive
for the use of drugs were generally either kept from advancing
to the next phase of the program – extending their time under
strict court supervision sometimes to longer than they would
have served in jail for the crime they were charged with – or
punished with jail time, essay writing, or additional court time
or supervision. This converted relapse to drug use into a moral
failure subject to criminal sanction, as opposed to a common
part of the recovery process, as defined by the American Society
of Addiction Medicine (ASAM).34 We also documented lack of
appropriate support for housing, education, job search, and other
essential case management, which, in drug court evaluations, has
been shown to be critical to long-term recovery.
In many of the situations documented by PHR, the drug court
participants’ rights to privacy, physical integrity, and health were
at risk. Where treatment compliance was enforced by threat of
severe punitive action, or coerced by law, both medical ethics and
human rights protections were directly violated.

Neither Justice Nor Treatment

This woman, showing her kit of clean needles, mixing cap, and
tourniquet, says she has tried to get treatment for her heroin
addiction, but was unable to secure a bed in a treatment facility
or to meet the drug test requirements of the treatment provider.
Homeless, she lives under a bridge in Philadelphia, which is in the
midst of an opioid epidemic.
Photo: Dominick Reuter/AFP/Getty Images

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Research Findings
continued

What is evidence-based
treatment?

Availability and Funding of
Treatment Options

The underlying premise for drug courts
is that they provide treatment for people
whose substance use and criminal behavior
are caused by a chronic brain disease:
substance use disorder.35 Substance use
disorder was included in the Diagnostic
and Statistical Manual for Mental Disorders
(DSM-5), the manual published by the
American Psychiatric Association which
classifies currently acknowledged mental
disorders and their components, with a
list of 11 criteria used to determine the
existence and severity of the disorder.36

A first and underlying obstacle to quality care for drug court
participants was the paucity of quality care options in the
communities served by the courts. Most interviewees pointed
to a significant treatment gap, especially for low-income people
with substance use disorders. All residential, inpatient, and detox
treatment facilities in communities visited by PHR had waiting
lists. In fact, for people seeking treatment voluntarily without
a court mandate, waiting lists could be months. Outpatient
services, if available, often had shorter waiting lists, but provided
a lower level of care. The net result was a dearth of available care
option for people with substance use disorders who wanted
treatment.

There is general clinical and scientific
consensus regarding the continuum of
care that is most appropriate to treat
addiction,37 including the notion that
the evidence base is stronger for the
treatment of opioids than for marijuana,
methamphetamine, cocaine, and other
stimulants. For opioid disorders, specifically,
the Food and Drug Administration has
approved three medications to be used in
combination with psychosocial treatment,
namely methadone, buprenorphine, and
naltrexone (oral and injectable).38 Vivitrol,
an extended-release injectable form of
naltrexone, is a newer form of medicationassisted treatment, which has gained
popularity in some drug courts without
the same evidence base as methadone
and buprenorphine. The World Health
Organization notes in its List of Essential
Medicines that both methadone and
buprenorphine “should only be used within
an established support programme.”39

Neither Justice Nor Treatment

This fact is echoed in available data. In 2013, 2014, and 2015, the
federal Substance Abuse and Mental Health Administration
referred to a treatment and service gap in its annual
announcement of discretionary grants. In New Hampshire,
specifically, a 2014 assessment found that all treatment providers
in the state, including methadone clinics, operated with waiting
lists.40 The assessment surveyed all treatment providers in the
state and also found a universal desire to expand capacity, but a
wariness to do so without assurance of adequate funding, either
through adequate insurance reimbursements or increased
funding from the state.41
Many interviewees cited particular difficulties in accessing MAT,
especially methadone. In New Hampshire, there were just eight
methadone clinics operating in the state, all of them located in the
southern half of the state.42 According to public information, there
were 36 methadone clinics in Florida, but several counties where
drug courts were operating lacked methadone clinics.43 In New
York, methadone treatment was particularly scarce upstate, with
one journalistic assessment noting in 2016 that in Syracuse, for
example, it was easier to access heroin than treatment.44

In New York, methadone
treatment was particularly
scarce upstate, with one
journalistic assessment
noting in 2016 that in
Syracuse, for example, it
was easier to access heroin
than treatment

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In efforts to meet the increasing need for substance abuse
treatment for opioid users, in 2016 the Department of Health
and Human Services raised the number of patients that licensed
buprenorphine providers were able to treat at one time from 100
patients to 275.45 Dr. Laura Martin, in Syracuse, said the rule had
eased long waiting lists for people seeking buprenorphine, but
because of onerous licensing procedures and stigma, doctors in
upstate New York were wary about becoming licensed to prescribe
buprenorphine and treat people with substance use disorders.
“The truth is many providers have misperceptions about the type
of people who need treatment for addiction. If you’re a regular
family doctor, you fear homeless people sleeping in your waiting
room, or drug deals happening in your office. In reality, it’s not
like that. I would like to see other doctors understand that a little
more,” Dr. Martin said.46
Access to legally prescribed buprenorphine has remained low
over the past 10 years in the three states covered in this report,
as measured by the percentage of the population that certified
prescribers of buprenorphine are able to cover.47 In Florida and
New York, certified prescribers could reach less than 0.1 percent of
the population in 2015. Only in New Hampshire did the number
of certified prescribers grow, doubling their reach to 0.3 percent of
the population in 2016 from 0.16 percent in 2015.
The dearth of certified providers meant that not all providers
had time to supplement the prescription of buprenorphine or
methadone with counseling, as recommended by the World
Health Organization (WHO). In fact, PHR found that some
providers ostensibly delivering MAT wrote prescriptions but had
very little other time for the patients at all. Alex Casale, state drug
court coordinator in New Hampshire, noted: “Many [clinics] are
private and still don’t provide counseling. There is … a Suboxone48
clinic, they don’t take insurance, and they don’t give therapy. They
charge 70 dollars a week, and give someone drugs. That is not
MAT: that is just giving someone drugs.”49

refused care on the basis of how many “failures” (i.e. relapses) the
patient had during various levels of care: outpatient, inpatient,
and residential. “First they didn’t take her because she didn’t have
enough failure in outpatient, then because she didn’t have enough
failures in inpatient, then there was a million people ahead of
her, then Medicaid wasn’t the right kind and didn’t cover.”50
Health providers PHR spoke to confirmed that patients usually
would have to “fail” less intensive care options before higher
levels of care were authorized, even if the health care providers
recommended the more intensive option.
Generally, interviewees in New York and New Hampshire pointed
to Medicaid expansion as helping to defray the costs of care for
some drug court participants. In Florida, it was another story.
Florida was one of 19 states that chose not to expand Medicaid
through the Affordable Care Act (ACA), so most drug court
participants were not eligible for Medicaid and few had private
insurance. As a result, treatment provided through drug courts in
Florida was either funded by the counties, or relied on state funds
through the Department of Children and Families.
MAT, in particular, was prohibitively costly unless covered by
insurance. For example, Vivitrol, an injectable form of naltrexone,
cost up to $1,000 for a monthly shot.51 In 2014, the Florida state
legislature dedicated $1 million of additional funding every year
to provide Vivitrol to treat alcohol and opioid-addicted people
under criminal justice supervision, either through drug courts
or probation. However, David Adan, the clinical supervisor at
Banyan Health Systems in Miami, which provides care for courtmandated clients in Miami-Dade County, Florida, said the funds
allocated to his clinic were enough for just six clients, and that his
funding would run out in May 2017.52

Drug court participants, team members, and treatment providers
all highlighted lack of funding for treatment of substance
use disorders as a massive hurdle to much-needed care both
inside and outside drug courts. Several drug court participants
told PHR they had sought care outside of the criminal justice
system, but had been unable to pay the cost. Richard, a 37-yearold drug court participant in upstate New York, told PHR of his
unsuccessful efforts to secure methadone treatment for his
wife, who had become addicted to prescription opioids after a
shoulder operation. He described a typical sequence of being

Court-mandated tests were also costly to drug court participants.
Shayanne, a 23-year-old drug court participant in New Hampshire
whose partner was also in court-mandated treatment, told PHR:
“I have private insurance, but my partner has Medicaid, which
covers 100 percent of the drug tests and screenings. I have a
copayment for mine since I have private insurance, I just got a bill
for $108 for each test.”53 Jim, a 32-year-old man in court-mandated
residential treatment in New York, told PHR the payment
demands could be onerous and unpredictable: “A lot of people
have problems when it comes to testing day, we have to pay for it,
$40-$120. Some days it goes to your treatment facility, then your
insurance covers it. But sometimes they want you to go to the
county.... They tell you to keep a money order on you in case your
number comes up [i.e. you are randomly selected for testing].”54

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Failure to Adhere to
Evidence-Based Treatment
In some drug courts PHR visited, the same treatment plan was
mandated for most participants, regardless of the severity of their
addiction level, while in others, non-medical staff recommended
treatment plans later deemed unhelpful by the medical providers
asked to implement them. Richard, a 37-year-old man in courtmandated long-term residential treatment in New York for
marijuana possession, told PHR his court-mandated treatment
plan was dismissed as inappropriate by his doctor. Richard said:
“It was just the drug court coordinator [who diagnosed me] who
has no degree or anything, and then when I came to see the actual
doctor [at the treatment center] who is a professional, he says,
you have no [addiction] problem.”55 The medical director at the
treatment facility Richard was assigned to by the court confirmed
to PHR that the treatment plan drawn up for Richard by the drug
court was inappropriate.56

City, said that she and colleagues at times suggested treatment
options for expediency rather than therapeutic reasons: “Did
we consult a medical professional? No. It’s more of a legal
determination. Really, what we are looking for is anything that
can help [the client’s] legal objectives…. No one is really making a
determination [about treatment] that’s medical.”57

“Did we consult a medical
professional? No. It’s more of a
legal determination. Really, what
we are looking for is anything
that can help [the client’s] legal
objectives…. No one is really
making a determination [about
treatment] that’s medical.”

In fact, as drug courts are part of the criminal justice system,
treatment plans were negotiables between defense lawyers and
prosecutors. Emma Ketteringham, a defense attorney in New York

Emma Ketteringham,
New York City defense attorney

Detoxing in Jail
Where drug court participants are
required to detoxify before they can enter
treatment, many were forced to go through
withdrawal in jail and without medical
supervision. The Office of Alcoholism and
Substance Abuse Services in New York
sets out clear guidelines for detoxification,
including mandatory medical supervision,
to avoid health complications or even
death.58
Joshua, a white male in his early 30s, had
been using heroin for about seven years
before being arrested in Gainesville, Florida.
One of the case managers at the Alachua
County drug court, who are tasked with
making treatment recommendations,
assessed Joshua to be a high-need
participant and recommended him for
long-term residential treatment.
With only one detox facility in Gainesville,
and a waiting list of several weeks for
Metamorphosis, the residential treatment
center, the drug court team decided to

Neither Justice Nor Treatment

keep Joshua in custody while he waited for
a bed – for his own safety, they said.
Joshua stood before the presiding drug
court judge, ready to plead guilty in order
to access the drug court’s program. But
when he heard he would have to detox in
jail – which can be a grueling process – he
began to beg, “I really don’t want to detox
in jail, please … I want to wait for my spot
in detox and then go into Meta[morphosis].
I’ve been wanting to get help. I’ve detoxed
in jail before … they don’t care if I die.”
Judge Walter M. Green cut him off, saying,
“You need to make a decision right now
… if you’re thinking you want to go home
and use one more time … I can tell you the
consequences of not going into treatment
today, right now … [You will overdose] …
you’re lucky to be alive, given your IV use.”
Facing prosecution for heroin possession, a
felony, and grand theft, Joshua chose to be
taken into custody and detox in jail.

In Hillsborough County, New Hampshire,
23 year-old Shayanne was poised to
graduate from drug court after more than a
year in the program. “My son’s first birthday
is the day before I graduate, so it will be a
great time,” she said. Her son, she said, is
the reason she decided to cooperate with
drug court treatment and quit heroin, a
drug she had been addicted to since she
was 17 years old.
Pregnant at the time of her arrest, Shayanne
knew the Department of Children and
Families could take her baby away as soon
as he was born if she didn’t stop using
drugs. She detoxed in jail, a harrowing
experience. “I detoxed without methadone
because I didn’t want my son to have to
detox when he was born. I chose not to
take methadone, but the jail staff gave me
no help either … one time, I was bleeding
in my cell, and I was afraid I was having a
miscarriage. All they told me to do was put
my jumpsuit in a biohazard bag so they
could weigh how much blood I had lost.”

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Drug courts came up particularly short when it came to
participants who use marijuana, in part because there are no
known effective, evidence-based treatments for marijuana
dependence.59 In New York, many individuals landed in drug
court programs because of marijuana possession charges, and
even more were kept from graduating from drug courts because of
marijuana use. A substantial number of these participants did not
present indications of marijuana dependence. In fact, several New
York-based treatment providers told PHR they were frustrated
that people in court-mandated “treatment” for marijuana use
took up seats in programs they could not benefit from, while
people with opioid dependence were “literally dying” because they
couldn’t access treatment.60

Despite buprenorphine’s proven record in curbing opioid
cravings, PHR found that some drug courts refused to include
medication-assisted treatment, including buprenorphine, in
the treatment options available to drug court participants.
Photo: Joe Raedle/Getty Images

Neither Justice Nor Treatment

Specific Barriers Related to
Medication-Assisted Treatment
The lack of reference to best practices in treatment of substance
dependence in the drug courts was particularly pronounced
with regard to access to MAT, notably methadone and orally
administered buprenorphine. This is despite the fact that
methadone and buprenorphine have a strong evidence base for
successfully preventing relapse for opioid dependence, and have
been placed on the WHO model list of essential medicines.61
A 2013 national survey of the availability of, barriers to, and need
for MAT for opioid addiction in drug courts (especially methadone
and buprenorphine) concluded that while almost all drug courts
had participants diagnosed with opioid use disorders, only 47
percent of courts offered agonist medication (notably methadone),
with a slightly higher percentage (56 percent) offering MAT of
some kind.62 Similarly, a 2013 study of drug courts in New York
concluded: “Drug court practices in some jurisdictions are a
barrier to access to MMT [methadone maintenance treatment]
and may constitute discrimination against people in need of
MMT. These practices should be changed, and drug courts should
give high priority to ensuring that treatment decisions are made
by or in close consultation with qualified health professionals.”63
Aversion to MAT in drug courts was so pronounced that, in early
2015, the U.S. federal government issued new guidance to deny
funding for drug courts who forced participants already on
methadone or other substitution therapy to phase out medication
as a condition for dismissal from drug courts.64 The new grant
rules also allowed, but did not require, drug courts funded by
federal grants to use up to 20 percent of these grants on MAT.65
Similarly, in September 2015, the governor of New York signed
a law to create uniform access to MAT in the state’s judicial
diversion program.66 The law amended New York’s Criminal
Procedure Law to explicitly state that participation in “medically
prescribed drug treatments” cannot be the basis for finding that a
participant in a drug court has violated release conditions.67
Even so, many drug court judges remained skeptical of the
need for and usefulness of MAT. In February 2017, for example,
Yavapai County drug court in Arizona continued to implement
a blanket denial of MAT, including to drug court participants
who had failed non-medication-assisted treatment before, and
where medication had been indicated as necessary for relapse
prevention by trained medical professionals.68

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Danielle Gravina, MAT Case Manager from Treatment
Alternatives for Safe Communities in Queens, a not-for-profit
organization contracted by some drug courts in New York City to
manage intake, evaluations, and drug testing, told PHR that in the
courts she worked with “you are not allowed to be on prescribed
medicine to start the [drug court] program, you have to start
clean.”69 This applied to both opioid substitution therapy as well
as medication prescribed for anxiety, attention deficit disorder,
and other co-occurring conditions. It is worth noting that rapid
detoxification without medical supervision can have grave, even
fatal, consequences.70
In some instances, advocacy for evidence-based treatment and
practice came from the drug court staff themselves. In Miami,
Florida, treatment providers told PHR the drug court judge, Jeri B.
Cohen, forced them to update their treatment methods to include
evidence-based options such as MAT.71 This advocacy from drug
court judges was not the norm, however. Joanna Caldwell, the
risk and compliance manager at South Florida Behavioral Health
Network (SFBHN), ran SFBHN’s quality assurance arm, which
took complaints filed by third parties against treatment providers.
“Judge Cohen is our primary complainant.... I’m not sure if I’d have
a job if she wasn’t around,” she said.72
Over the years, organizations like the NADCP and Center for
Court Innovation have increased trainings for drug court staff,
leading to increasing awareness of evidence-based practice for
treating people with substance use disorders, in particular opioid
use disorders. However, access to training was still contingent on
funding, and for drug courts without funding or dependent on
county funding, training and educational seminars on the latest
developments in addiction medicine and evidence-based practice
were out of reach. Dr. Thomas Robinson, a psychologist and
director of mental health at Jackson Hospital in Miami, Florida,
pointed to the lack of consistency and scientific grounding in
training to treat people with substance use and mental health
disorders. “Everyone has a modicum of training, but no one
stays up-to-date on new research. You obviously can’t have a
psychologist or psychiatrist treating everyone, but you can give
more people better training,” he said.73

Inadequate Insurance Reimbursements
Treatment providers and drug court team members often cited
insurance coverage as an operational consideration in their
determination of what type of treatment should be mandated for
each drug court participant. While international human rights
law does not mandate any specific health system set-up, the right
to nondiscrimination in accessing available health care option
would require equitable access for all, including people in conflict
with the law or those without resources. For many drug court
participants, the tension between a criminal justice imperative
and their lack of insurance coverage resulted in an additional
debt burden or inability to access needed care. Keith Brown,
the director of the Law Enforcement Assisted Diversion (LEAD)
program in Albany, New York, summarized it succinctly: “The
criminal justice [system] tells you: we’ve assessed you and we say
you need this care. The insurance company says, that’s fine, but
we don’t pay for it.”74
The uncertainty with regard to where payment for treatment
would come from created limited options for both drug court
teams and treatment providers, who told PHR they at times
were compelled to recommend inappropriate treatment plans
for participants whose insurance would not cover the option
indicated by best practice. Notably, many insurance providers
covered only 28 days of inpatient or residential treatment, or
less.75 This length of treatment is thought to have its basis in
the “Minnesota Model” developed for treating alcoholics in the
1950s,76 but which hasn’t been validated thoroughly since. Dr.
Joshua Lee, associate professor of population health and medicine
at New York University, told PHR: “There is not a whole lot of
evidence that residential treatment for drug dependence needs to
be of a particular length.” Dr. Lee also noted that, in his experience
as attending physician at Bellevue hospital in New York City,
insurance companies regularly refused to pay for the length or
type of treatment recommended by the attending physician: “It
happens all the time: they deny inpatient treatment, so then we
have to send people elsewhere.”77

In PHR’s research, lack of consistency within the treatment
community led to the criminal justice system overriding or
undermining the credibility of competent treatment providers.
It also provided openings for staff without clinical training to
implement punitive practices without therapeutic purpose.

Medicaid coverage for substance use disorder treatment was
considered preferable to private insurance by the treatment
providers interviewed by PHR, in large part because the coverage
was predictable, and the process to ensure payment likewise
known. Drug court coordinators, case managers, and defense
lawyers, in particular from New York and New Hampshire, told
PHR that one of the very first steps in the drug court intake
process was to ensure that the participant was signed up for
Medicaid, or had private insurance. An assistant district attorney

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in New York County who was an early participant in Manhattan’s
first felony drug court told PHR: “A real problem is, ironically,
the more affluent defendants. Medicaid pays for everything. But
private insurance doesn’t. They won’t reimburse for medicationbased treatment, or have limits to number of visits.”78 Dr. Lee
concurred: “Medicaid is easier than commercial insurance.”79
The ACA facilitated the expansion of Medicaid, which extended
health insurance benefits to an estimated 1.6 million previously
uninsured people with substance use disorders, in states
that opted in.80 The ACA also required states that adopted the
Medicaid expansion to cover substance use disorder treatment
as part of essential health benefits.81 However, outside of essential
health benefits, addiction treatment services are not mandated at
the federal level, leaving states significant flexibility in how they
provide coverage for addiction-related treatment services.82
Research published in 2015 with data from 2011-2013 showed
that only 13 state Medicaid programs included all medications
approved for alcohol and opioid dependence on their preferred
drug lists, with the most commonly excluded drug being
methadone. Several state programs required pre-authorization
for combined buprenorphine-naloxone treatment and a handful
placed lifetime treatment limits of one to three years for MAT.83
Medical research confirms that some people with opioid
dependence need to continue on MAT for an extended period of
time, even over a lifetime, to avoid relapse and an escalated risk of
overdose.84
Further, in states that did not opt for Medicaid expansion through
the ACA, such as Florida, a significant proportion of adult drug
court participants had incomes that were too low to qualify for
subsidies available on the federal exchange, yet they continued
to be ineligible for Medicaid and had no employer health
insurance.85
For the states covered by this research, New York was the only
one that covers all four treatment levels mentioned in ASAM
guidelines in its expanded state Medicaid coverage. New
Hampshire’s state Medicaid expansion did not cover intensive
outpatient and residential outpatient services, and Florida did
not opt into Medicaid expansion. All three states, in theory,
covered access to methadone, buprenorphine, and naltrexone
through Medicaid, though needs assessments and the experience
of clinical staff trying to get patients into methadone programs
showed considerable unmet needs.86

Neither Justice Nor Treatment

Ed Fox, the director of Project SafePoint in Albany, a harm
reduction program that did not work directly with drug courts,
spoke to the daunting nature of dealing with insurance: “The
realities around insurance are complex [for people with substance
use disorders]: finding out what insurance they have, calling
around, what programs are around that will take their insurance,
that can keep people away.… We are holding a person’s hand if
necessary – it’s daunting. It’s traumatic enough to be addicted.”87

Barriers Specific to High-Risk,
High-Need Participants
The NADCP noted in its Best Practice Standards that drug courts
should target high-risk and high-need participants, or, if unable to
do so, develop alternative tracks with services that meet the risk
and need levels of its participants.88 In this context, “high-need”
means individuals with a significant need for treatment for a
substance use disorder, and “high-risk” means individuals who
are very likely to reoffend. In reality, however, this very population
faces significant barriers to participation in drug courts, some of
which PHR documented during the course of this research.
A key barrier to participation in drug court programs for highneed, high-risk people was the very process by which eligibility
was determined. While every drug court visited by PHR had a
slightly different process, most gave the prosecutor or county
attorney the power to decide whether or not a person was
offered the option to plead into the court program rather than
face criminal charges, and the judge had the final power to
veto. David Betancourt, a public defender in Strafford County
in New Hampshire, told PHR: “A fifth of people who want drug
court are kept out of it, because … the county attorney won’t let
them in. That’s the most frustrating, when you have a client
who needs drug court and the prosecutor is set on a more
punitive sentence.”89 On the other hand, a prosecutor from New
York County said that, in her opinion, judges could go in either
direction: “Some judges focus very carefully on who really should
go into the diversion programs, but some judges will send anyone
in.”90
Alex Parsons, the managing defense attorney for Cheshire County
in New Hampshire, told PHR: “We had a case in my office where
there was a sheriff’s deputy who made a case for this individual
that he believed … was in a place where he was ready for treatment
and rehab, and this individual was desperate. The prosecutor was
of the mindset that he needed to be punished, and that he needed
a prison sentence … and the participant became suicidal.”91

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Federal and state grants, and, in the case of Florida, a state statute,
often exclude specific types of charges from diversion into drug
courts. Those charged with offenses considered violent, and
repeat felony offenders, are excluded by federal grants, and by the
Florida state statute. Some jurisdictions at the county level will
impose their own exclusion criteria, such as people charged with
the sale of drugs rather than simple possession.
A person who is both high-need and high-risk will likely hit one
or several of those exclusion factors: they will have been arrested
multiple times, they will sell drugs to fund their use, and they
may have displayed violent behavior as a result of their addiction.
In some places, available treatment centers would not take
court-mandated clients charged with violence offenses. Dana
Patterson, the case manager from Alachua County felony drug
court in Florida, told PHR the restrictions of the closest residential
rehabilitation center proved difficult for the intake process,
because some patients whose drug dependency level was such
that inpatient care would be deemed more likely to be successful
would not be considered eligible for residential treatment because
of the nature of their alleged crime. “If we were to start taking
violent offenders, there would be an issue internally in terms of
care, because their criminal history might make them ineligible
for [inpatient treatment], which means that we are setting them
up for failure by taking them into the program at an outpatient
level,”92 Patterson said.
A key criticism launched at drug courts has been that they cherrypick their participants.93 It may very well be that they do not
cherry-pick so much as have their participants picked for them
through these funding restrictions, which skew participants
towards lower need and lower risk. A New York prosecutor told
PHR that it was a waste of resources to send people to drug court
who do not really have a serious drug problem, as there are a lot of
people who could benefit, and there is a waiting list for treatment
in New York City unless you are mandated by a court.94 Chief
Justice Tina Nadeau, of the New Hampshire Supreme Court, told
PHR the acceptance of low-need individuals in drug courts meant
recidivism rates for the courts should not be read as a measure
of effectiveness, but rather as a proxy measure for whether
participants had needed treatment in the first place: “If you have
really low recidivism rates [in drug court participants] then it’s
not really a good measure for how well you’re doing because you’re
not taking the people who need it most.”95 She said this element
was hard to communicate to legislators who determine funding,
because they look to recidivism rates rather than long-term
recovery as proof the drug court model works.

Neither Justice Nor Treatment

Broken Promises: Involuntary and
Punitive Treatment in Drug Courts
Drug courts promise voluntary treatment, not punishment,
for people with substance use disorders, including appropriate
support for recovery. In PHR’s research, much of this promise
remains unfulfilled. Many treatment providers felt their expertise
was overridden by other drug court team members, like the
prosecutor, probation officer, or judge, who preferred to impose
punishment for behavioral or treatment infractions such as
breaking a curfew or failing to comply with other drug court rules.
Several providers told PHR that they often had to defend their
therapeutic choices in court, and that they decided on a case-bycase basis whether it was worth the fight.96
Many interviewees pointed out the tension between the courts’
mandate to balance public safety with the needs of drug court
participants, which in some cases led to drug courts weakening
due process. Particularly in New Hampshire, where more courts
were admitting higher-risk cases, including people charged with
violence offenses, prosecutors and probation officers cited the
need to keep participants under close surveillance, a practice that
undermined the therapeutic approach.

“A fifth of people who want
drug court are kept out of
it, because … the county
attorney won’t let them in.
That’s the most frustrating,
when you have a client who
needs drug court and the
prosecutor is set on a more
punitive sentence.”
David Betancourt, public defender,
Strafford County, New Hampshire

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Drug Tests, Abstinence, and
Patient-Provider Confidentiality
Most drug courts PHR visited compelled participants to waive
doctor-patient confidentiality and to submit to regular drug tests
which – it was understood – would be discussed openly in court.
This element is, in fact, key to most drug courts across the United
States: a participant’s abstinence from all drug use other than
(in some cases only) MAT – often measured in terms of drug test
results – was a condition for their graduation to the next level of
the program.
The NADCP Best Practice Standards, published in 2015, state that a
person suffering a relapse or testing positive for drug use should
never be punished, but should instead receive a “therapeutic
adjustment.”97 However, PHR found that testing positive for drug
use still resulted in punishment in many drug courts. Several
courts in Florida imposed jail sentences of up to a month for
positive or missed drug screenings.98 In Putnam County, New
Hampshire, the first positive drug screen automatically leads to
seven days in the county jail, with any subsequent positive drug
screen leading to a minimum of 48 hours in jail.99 Judge James
Carroll, of the Belknap County drug court in New Hampshire,
summarized this situation aptly: “If it’s a cancer patient, we bake
brownies and throw fundraisers for them. We need to have more
of that mentality for those with addiction.”100
Lack of confidentiality at times led to a breakdown of the
therapeutic relationship between health care provider and
patient. Stacey Lanza, a treatment provider who worked with
court-mandated patients at Phoenix House in New Hampshire
for two years, noted: “It was very difficult to do true treatment and
therapy with [drug court] clients because there was this sense
that we were going to tell the team and judge, and they would be
punished.”101 Likewise, Asa Scott, an addiction care administrator
at Addiction Care Interventions in New York, expressed
discomfort with the role of being a court “snitch” and worried
that patients might not see clinicians as advocates because the
“stick of the punishment from court is greater than the carrot of
therapy.”102 She reported that one patient told her “I have three
hands around my neck” – meaning, the court, the therapist, and
his own.

Neither Justice Nor Treatment

Abstinence measured through drug tests was often used as
a proxy for court compliance, even to the exclusion of other
measures. In one drug court session in New York City observed by
two PHR researchers in June 2016, a participant who had tested
negative for drug use graduated to the next phase of the program
despite having used abusive language against a treatment
provider, while another who had tested positive was held back
despite reportedly engaging constructively in the court-mandated
treatment program. Moreover, both drug court participants had
their drug use and treatment information discussed in open
court.103
The National Association of Drug Court Professionals highlights
the need for both abstinence and regular drug tests as a key
component of the model they promote.104 Some addiction
specialists told PHR that drug testing may have a therapeutic
purpose in addiction therapy, though PHR was not able to find
research to support this claim. Treatment providers linked
this therapeutic purpose to the establishment of trust between
patient and therapist. Notably, this trust would be undermined by
punishing positive drug tests with jail time or delay in graduation
from the drug court program. David Lucas, treatment coordinator
at Toronto drug court, said he had asked his clients about the
usefulness of drug tests: “They said it made things simple for
them: I can’t lie about it, so I’ll just have to be honest. Maybe
they can’t be honest yet about abuse or trauma, but they have to
be honest about the drug use.”105 Lucas added, however, that no
participant gets punished for a positive drug screen at Toronto
drug court: “We don’t give them any static about use – if we did
that, we’d be little more than glorified parole officers.”106
To be sure, carrying out targeted exams and tests to measure
the impact of any kind of treatment is part of the responsible
practice of medicine. In fact, drug dependence and substance
use disorders are health conditions, the normal patterns of
which include relapses of drug use,107 which can be measured
in toxicology reports. Further, in the context of MAT, toxicology
reports for use in private medical consultations are necessary
to check and adjust dosage levels and cross-refer with other
patient indicators. However, when this information is shared
in public court hearings or used to administer punishment, the
individual’s human rights to privacy and health are violated.

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Research Findings
continued

Inadequate Case Management
Drug courts in the United States provide varying levels of
support for participants in terms of facilitating access to housing,
transport, education, and health care unrelated to problem drug
use. This type of support – often referred to as “case management”
– has proven paramount to participants successfully completing
drug court programs. In an evaluation of New York drug
courts published in 2011, higher levels of case management, in
combination with a judge’s consistent praise and engagement,
was highlighted as key to lowering the incidence of drug use and
criminal behavior in participants.108
In fact, many of the treatment providers, lawyers, and judges PHR
spoke with noted that case management not only was key to a
person’s ability to graduate from drug court, but also to long-term
recovery. Treatment providers and coordinators, in particular,
often placed it above judicial supervision, and certainly above
sanctions. The mental health counselor at a residential treatment
center in upstate New York, which accommodates courtmandated patients from across the state, told PHR that a stronger
focus on the patients’ needs and motivation, rather than on
abstinence, would support successful treatment outcomes and
long-term recovery: “Maybe if [drug courts] focused less on scare
tactics, if they were more supportive… if they were to examine
more closely a client’s own motivation: do they want to get clean,
to not reoffend, or to take care of their family, and then go with
that… we’d be more successful.”109
PHR’s interviewees mentioned lack of housing in particular as a
serious issue that could determine whether or not a participant
was able to successfully complete a court-mandated treatment
plan. Robert Gasser, a retired prosecutor and former coordinator
of Grafton county drug court in New Hampshire, told PHR that
housing turned out to be central to success, as many drug court
participants are homeless, in nonpermanent housing, or need to
leave their home situation to get away from family members who
use drugs: “When I started the drug court in Grafton, people told
me I’d have two problems. One was transport: people can’t get to
court, can’t get to treatment, can’t meet their obligations. This
was not a problem. People bonded together, they would get a van,
or help each other get to where they needed to get to. The second
problem was housing. And, boy, that is absolutely our number
one problem.”110 Other counties in New Hampshire cited similar
problems, and noted that transportation could be of critical
concern because it affected a person’s ability to make court and
clinic appointments.111
Most drug courts PHR visited did not have the funding
or regulatory support to offer case management services
like transportation and housing. “It’s predictable that [the

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participants] won’t succeed if they don’t have these things,” said
Alex Casale, state drug court coordinator in New Hampshire.
“We have an obligation to provide what our participants need.
They need housing, they need various levels of treatment for their
substance abuse and mental health problems – which run the
gamut – and they need counseling and education [referring to the
fact that some drug court participants did not finish schooling].”112
Many participants and drug court team members we spoke with
were not able to speak with personal experience to the difference
such services would have made, given that the services were not
available to them. Instead, the main experiential knowledge
came from harm reduction activists, who witnessed the impact
firsthand in terms of a reduction in criminal recidivism. Keith
Brown, the director of Albany’s LEAD program, a pre-arrest
diversion program that is based on harm reduction principles,
told PHR that LEAD was all case management with no punitive
sanctions. Because of it, LEAD was successful at keeping people
out of the criminal justice system: “For example, if you are a
homeless injector, and you keep getting arrested because you
inject in a MacDonald’s – even if we can’t get you treatment, if
we get you an apartment, that’s going to lower your engagement
with criminal justice, because you now have a safe place to use. Is
it the be-all end-all? Of course not. But does it keep you out of the
criminal justice system? Yes, it does.”113
For contrast, PHR also reached out to David Lucas, the treatment
coordinator at Toronto drug court, in Canada, where support
services were readily available. He confirmed: “If you asked the
clients, ‘How do you measure success and how do you get [to
recovery]?,’ not a single one would mention urine screens. They
would talk about community, connection, housing, support –
that’s what really works and what brings the lasting change.”114

“Maybe if [drug courts] focused
less on scare tactics, if they
were more supportive… if they
were to examine more closely
a client’s own motivation - do
they want to get clean, to not
reoffend, or to take care of their
family, and then go with that…
we’d be more successful.”
Mental health counselor, residential
treatment center, New York

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Research Findings
continued

Involuntary Treatment
Drug court participants signed over their rights to autonomy and
confidentiality in treatment when entering court-supervised
programs. The justification given for this limitation on rights
was usually that no one is forced to participate – that participants
voluntarily choose treatment over jail or probation. Critics of drug
courts have noted that the voluntary nature of court-mandated
treatment has been compromised by limited alternatives, and
by the severity of the prison sentence the participant would
otherwise serve.115
Apart from the potential prison sentence and probation, there are
also long-term legal consequences to being convicted for a drugrelated offense, which might compel a person to plead into drug
court regardless of whether they are ready for or in need of the
treatment program provided through the court.
Federal and state regulations permit (in some cases require) the
exclusion of those convicted of drug-related offenses from public
benefits. For example, the Welfare Reform Act of 1996 makes
anyone with a federal or state felony drug conviction ineligible
for welfare benefits for life.116 Conviction for drug-related offenses
also leads to a time-bound ban on federal student aid, and people
with three convictions are subject to a life-long ban.117
Federal and state housing regulations allow substantial discretion
on exclusion of people who use drugs from public housing – no
conviction or arrest necessary.118 Most states – with the notable
exception of Vermont and Maine – impose some restrictions on
voting rights for convicted or imprisoned felons, including those
convicted of drug-related offenses.119 Florida imposes a lifetime
voting ban on all people convicted of a felony. Fourteen states,
including Florida and New York, automatically suspend drivers’
licenses for at least six months for drug possession. Florida
requires a mandatory suspension of one year.120
In fact, many of the drug court team members PHR interviewed
noted that drug court programs and plans only really work where
the threat of a prison sentence or other traditional criminal justice
responses is strong enough.121 Some testified that some drug court
participants were charged with the maximum amount of crimes
in order to create a “big enough stick,” meaning an incentive
for them to “volunteer” for drug court.122 Ironically, drug court
participants often had to plead guilty to these unproven charges
in order to access drug court and would receive conventional
criminal justice sentencing for those charges if they failed to
graduate from drug court.

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In Florida, people with substance use disorders did not have to be
charged with a crime to be subjected to involuntary treatment.
The Substance Abuse Impairment Act (known as the Hal S.
Marchman Alcohol and Other Drug Services Act or Marchman
Act) allows for the involuntary commitment and treatment of
people “if there is good faith reason to believe that the person is
substance abuse impaired or has a co-occurring mental health
disorder.”123 The admission criteria was loosely established
through the law as a situation where someone who uses drugs
“without care or treatment is likely to suffer from neglect or
refuse to care for himself or herself; that such neglect or refusal
poses a real and present threat of substantial harm to his or her
well-being; and that it is not apparent that such harm may be
avoided through the help of willing family members or friends or
the provision of other services, or there is substantial likelihood
that the person has inflicted, or threatened to or attempted to
inflict, or, unless admitted, is likely to inflict, physical harm on
himself, herself, or another.”124 In other words, a person could
be involuntarily committed – by reference to harm or criminal
behavior that hasn’t happened yet – on the basis of the subjective
judgement of drug court staff and facilitating agencies without
medical or substance abuse treatment training.
While Marchman Act admissions in principle were separate
from criminal procedures, warrants issued under that law were
implemented with the full coercive force of the police, with severe
consequences. Brian, a 32-year-old man in Tampa, told PHR: “It
really doesn’t help when they pick you up for those [Marchman
Act] warrants, they come with three or four cop cars, picking
you up in the middle of the night, freaking out my family. I have
three little girls. And then there is the constant going over to
my neighbor’s house and stating that I’m not a fugitive … that
I’m not a criminal, even though I am being treated like one.
That [my case] is a mental health case.”125 Brian estimated he
had spent more than 145 days in custody for refusing to comply
with treatment or test orders, and waiting for a bed in residential
treatment. He faced no criminal charges at all.
Some treatment providers interviewed in all three states said
court-enforced compliance with treatment requirements
made their jobs easier. They pointed to better compliance with
treatment for participants under court supervision. “It doesn’t
matter how you get into treatment, whether it’s mandatory or
voluntary. I think consequences are part of the recovery process.
If you had that same approach in the public health department,
you’d get a lot more people doing well,” said Debra Thomas, a
clinical liaison with DACCO, a treatment provider receiving courtmandated clients from the Hillsborough Drug Court in Tampa,
FL.126

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Research Findings
continued

Régent Champigny, a mental health counselor with the Greater
Nashua Mental Health Center in Nashua, New Hampshire, agreed.
Mr. Champigny was contracted by the Nashua drug court to treat
its clients. “They are a unique bunch coming from the criminal
justice system. It’s the nudge from the judge that is very effective.
If my clients were not in drug court, they wouldn’t meet their
appointments and better themselves,” he said.127
From a medical perspective, there is little evidence to support
enhanced effectiveness of involuntary treatment for substance
use disorders. A systematic analysis of the scientific evidence
on the effectiveness of compulsory drug treatment published
in 2016 concluded that the limited literature on this subject did
not, on the whole, suggest improved outcomes from compulsory
treatment, with some studies suggesting potential harms.128
From a human rights perspective, as well, the voluntary nature
of the treatment is paramount, as the rights to health and
physical autonomy require informed and meaningful consent to
treatment.129 Moreover, even treatment providers who referred
to mandated treatment as “overall a good thing” clarified that a
person’s motivation to enter treatment was what determined a
successful treatment outcome. Dr. Todd Patton, medical director
at El Rio treatment center in the Bronx, New York City, told PHR:
“For people who are really ready for [treatment], [mandated care]
can be a life changer, and we’ve had people really turn their lives
around. … But there are some people who are not ready, and you
have to want to get better [for treatment to work].”130

A woman stands in the hallway of a drug treatment clinic in
Burlington, Vermont.
Photo: Jordan Silverman/Getty Images

Even treatment providers
who referred to mandated
treatment as “overall a
good thing” clarified that
a person’s motivation to
enter treatment was what
determined a successful
treatment outcome.

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Human Rights, Health Care,
and Criminal Justice
Confidentiality

Consent to Treatment

The right to privacy is protected under international law,
including in the International Covenant on Civil and Political
Rights (ICCPR).131 The UN Human Rights Committee, which is
authorized by states to monitor the implementation of the ICCPR
and offer authoritative interpretations of its provisions, has
noted that any state interference with the right to privacy, “even
interference provided for by law [,] should be in accordance with
the provisions, aims and objectives of the Covenant and should be,
in any event, reasonable in the particular circumstances.”132

The right to bodily integrity, and with it the right to refuse medical
treatment and to be free from non-consensual treatment, is an
integral part of the human rights to health,140 security of person,141
and to freedom from torture and other cruel, inhuman, and
degrading treatment.142 The Declaration of Lisbon establishes a
patient right to self-determination, including the right “to make
free decisions regarding himself/herself,” “the right to give or
withhold consent to any diagnostic procedure or therapy,” and “the
right to the information necessary to make his/her decisions.”143

The right to confidentiality in health care is implicit in the right
to the highest attainable standard of health, contained in the
International Covenant on Economic, Social and Cultural Rights
(ICESCR).133 The Committee on Economic, Social and Cultural
Rights, the authoritative oversight body for the ICESCR, refers
specifically to the “right to have personal health data treated with
confidentiality.”134 The World Medical Association’s Declaration
of Lisbon on the Rights of the Patient (Declaration of Lisbon)
establishes a right to confidentiality, noting that “all identifiable
information about a patient’s health status, medical condition,
diagnosis, prognosis and treatment and all other information of a
personal kind must be kept confidential, even after death.”135

All 50 U.S. states have legislation that requires some level of
informed consent for treatment.144 The doctrine of informed
consent also includes the right to refuse medical treatment, and is
clear that patients must be given the information to understand the
health consequences of both treatment and refusal of treatment.145
These elements are routinely flouted in drug courts, where
treatment elements and options often are part of an incentives
and sanctions schedule, and where consent is compelled through
threats of incarceration.

In an effort to encourage people to seek treatment, U.S. federal law
specifically protects the confidentiality of drug and alcohol abuse
treatment and prevention records.136 The regulations are meant
to limit the use and disclosure of substance abuse patient records
and identifying information in federally assisted substance
abuse treatment programs.137 The protections are broad, but the
exceptions to them equally so. Notably, in the case of drug court
proceedings, while treatment providers usually are covered by
federal confidentiality regulations, the other members of the drug
court team are exempt and often refer to treatment information
in open court.138 Moreover, the law sets out exceptions to the
consent requirement, including when disclosure is in response
to a court order, and when patients provide written consent
to disclosure.139 All of the drug courts Physicians for Human
Rights (PHR) visited required participants to waive the right to
confidentiality of their treatment information as a condition for
participation in the drug court program.

Dual Loyalty
The primary loyalty of every health care professional must be
to their patient. This concept is central to medical ethics, and is
captured in the very first principle of the Declaration of Lisbon:
“Every patient has the right to be cared for by a physician whom
he/she knows to be free to make clinical and ethical judgements
without any outside interference.”146 Dual loyalty occurs when a
doctor’s primary concern for their patient is replaced, in part or in
whole, by “simultaneous obligations, express or implied … to a third
party, often the state.”147 Where the interests of the patient and the
state are the same, dual loyalty poses little risk. However, where
they are not aligned, the result could be that doctors are compelled
to set aside the interests of their patients for the benefit of the state.
The International Dual Loyalty Working Group, convened by PHR
in 1993, provided examples of contexts that may give rise to dual
loyalty conflicts, including health practice in closed institutions
such as prisons and with socially stigmatized patients.148 The
Working Group also gave concrete examples of the dimensions of
the problem:
–– Health professionals subordinating independent judgment,
whether in therapeutic or evaluative settings, to support
conclusions favoring the state or other third party; and
–– Health providers limiting or denying medical treatment or
information related to treatment of an individual to effectuate
the policy or practice of the state or other third party.149
These elements are certainly borne out in the context of some drug
courts in the United States, as documented in this report.

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Conclusion and
Recommendations
While some drug courts have benefitted people who would
otherwise not have gotten treatment, other drug courts have
fallen woefully short of achieving the objectives set almost three
decades ago to substitute treatment for jail for people suffering
from substance use disorders. This is largely due to a conflation
of substance use with addiction, a serious unmet treatment
need, and a reluctance to trust the growing evidence base on
what constitutes quality treatment and what are appropriate
clinical guidelines for care. The drug courts we examined varied
widely in whether they were able to provide participants with
access to quality evidence-based treatment, their acceptance
of medication-assisted treatment, and their attitudes towards
diversion of people who engaged in criminal behavior due to
problematic drug use away from the criminal justice system
altogether.
It is questionable if drug courts will ever be able to deliver on their
promise, rooted as they are in a punitive criminal justice logic that
undermines their stated objective to treat participants as ill rather
than deviant. By implementing the following recommendations,
the courts may, however, bridge some of the gap.
	 To the White House
•	 Ensure that the White House Office of National Drug Control
Policy (NADCP), or equivalent entity, provides adequate
grants for state and local initiatives to address problem drug
use through comprehensive, community-based strategies
involving appropriate case management, access to stable
housing, and evidence-based treatment, in particular those
provided for in Public Law 114–198, section 103.
	 To the Department of Justice
•	 Provide increased funding for state and local pre-booking
diversion initiatives (Law Enforcement Assisted Diversion
programs). These initiatives have been shown to dramatically
decrease recidivism and avoid re-arrest of people with
addiction-related criminal behavior.
•	 Remove restrictions attached to current Bureau of Justice
Assistance and Substance Abuse and Mental Health Services
Administration grants (and any other federal grants for drug
courts) requiring that only non-violent offenders be diverted
to treatment courts, thereby allowing courts to take ‘highrisk, high-need’ people based on medical best practice and
diagnosis, not legal criteria.
•	 Issue federal guidelines for drug court regulations, based on
NADCP best practices, including, at a minimum, the following
guarantees:
–– Access to evidence-based treatment for substance use
disorders, including access to medication-assisted treatment
(MAT) where appropriate according to clinical best practices;
–– No punitive actions taken for positive drug tests or other
symptoms of substance use disorders;

Neither Justice Nor Treatment

–– Assessment for substance use disorder based on American
Society of Addiction Medicine or other evidence-based
criteria;
–– A certified MAT provider as well as a trained health
professional on all drug court teams;
–– Sufficient funding to ensure case management support in
all drug courts, including, specifically, facilitating access to
housing and public transport;
–– Continued legal representation for all drug court participants
throughout drug court proceedings; and
–– Public funding for all court-mandated treatment and tests.
	 To Congress
•	 Decriminalize drug possession for personal use as a direct way
to facilitate access to voluntary treatment by removing fear of
arrest.
•	 Ensure Medicaid coverage for people with substance use
disorders living below the poverty line.
•	 Appropriate adequate funding for grant initiatives and
programs announced in Public Law 114-198, as well as other
initiatives geared at diverting people charged with addictionfueled criminal behavior away from the criminal justice
system.
•	 Remove restrictions on public benefits for people convicted of
drug-related offenses, including restrictions on federal student
aid.
	 To State Governments
•	 Issue state guidelines for drug court regulations, based on
NADCP best practices and follow any federal guidelines based
on best practices, as recommended for federal guidelines above.
•	 Ensure that state Medicaid covers treatment for substance use
disorders according to best clinical practices and guidelines.
•	 Immediately defund drug courts that disallow MAT.
•	 Decriminalize drug possession for personal use as a direct way
to facilitate access to voluntary treatment by removing fear of
arrest.
	 To County Commissioners
•	 Immediately defund drug courts or treatment providers
receiving court-mandated clients that disallow MAT.
•	 Require drug courts receiving county funding to follow federal
and state guidelines on best practices and evidence-based
treatment.
•	 Provide additional funding for training and capacity building
for drug court staff, including treatment providers in the
community receiving funding for drug court referrals.
	 To Health Insurance Companies
•	 Cover evidence-based treatment for substance use disorders,
including access to MAT, as prescribed by a patient’s or drug
court participant’s treating physician.

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Endnotes
1.	 Florida Courts, “Drug Courts,” accessed May 8, 2017,
http://www.flcourts.org/resources-and-services/courtimprovement/problem-solving-courts/drug-courts/.
2.	 New York State Unified Court System, “Drug treatment
courts,” accessed May 8, 2017, http://www.nycourts.
gov/courts/problem_solving/drugcourts/index.shtml.
3.	 New Hampshire Judicial Branch, “Drug and Mental
Health Courts,” accessed May 8, 2017, https://www.
courts.state.nh.us/drugcourts/locations.htm.
4.	 See Human Rights Watch and the American Civil
Liberties Union, “Every 25 Seconds: The Human Toll of
Criminalizing Drug Use in the United States,” October
2016, accessed on April 11, 2017, https://www.hrw.
org/report/2016/10/12/every-25-seconds/human-tollcriminalizing-drug-use-united-states.
5.	 See David Boyum, Peter Reuter, “An Analytic Assessment
of U.S. Drug Control Policy,” American Enterprise
Institute Press, Washington, DC, 2005, pp. 2-3; and
Beau Kilmer, Gregory Midgette, and Clinton Saloga,
“Back in the National Spotlight: An Assessment of
Recent Changes in Drug Use and Drug Policies in the
United States,” Brookings Institute, July 2016, accessed
February 17, 2017, https://www.brookings.edu/wpcontent/uploads/2016/07/Kilmer-United-States-final-2.
pdf.
6.	 See Human Rights Watch and the American Civil
Liberties Union, “Every 25 Seconds: The Human Toll of
Criminalizing Drug Use in the United States,” October
2016.
7.	 Ronald Reagan, “Radio Address to the Nation on Federal
Drug Policy,” October 2, 1982, accessed March 7, 2017,
http://www.presidency.ucsb.edu/ws/?pid=43085;
Tess Owen, “’Just Say No’: How Nancy Reagan Helped
America Lose the War on Drugs,” Vice, March 6, 2016,
accessed March 7, 2017, https://news.vice.com/article/
just-say-no-how-nancy-reagan-helped-america-losethe-war-on-drugs.
8.	 New York City Police Department, “Broken Windows
and Quality of Life Policing in New York City,” William
J. Bratton, Police Commissioner, 2015, accessed March
9, 2017, http://www.nyc.gov/html/nypd/downloads/
pdf/analysis_and_planning/qol.pdf; George L. Kelling
and James Q. Wilson, “Broken Windows: The police
and neighborhood safety,” The Atlantic, March 1982,
accessed March 9, https://www.theatlantic.com/
magazine/archive/1982/03/broken-windows/304465/;
John Del Signore, “Broken Windows Theory Broken: Most
People Arrested for Pot Possession Aren’t Dangerous
Criminals,” The Gothamist, November 23, 2012, accessed
March 9, 2017, http://gothamist.com/2012/11/23/
broken_windows_theory_broken_most_p.php; Human
Rights Watch, “A Red Herring: Marijuana Arrestees Do
Not Become Violent Felons,” 2012, accessed March
9, 2017, https://www.hrw.org/report/2012/11/23/
red-herring/marijuana-arrestees-do-not-become-violentfelons. Both the relative dangers of “illicit” versus legal
drugs as well as the effectiveness of abstinence as key to
avoiding drug addiction have implicitly been validated
through “broken windows” policies, without reference to
historical fact or evidence. In fact, drugs predominantly
used by marginalized populations have often been
subject to restrictions, whereas the drugs of choice
for more privileged groups have not. See e.g. Tessie
Castillo, “Why Are Heroin, Cocaine and Other Drugs
Really Illegal? We Must Never Forget the Answers,” The
Influence, April 4, 2016, accessed March 7, 2017, http://
theinfluence.org/why-are-heroin-cocaine-and-otherdrugs-really-illegal-we-must-never-forget-the-answers/
(discussing the history of criminalization of drugs in
the United States). When restrictions are imposed, the

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9.	

10.	

11.	

12.	

13.	
14.	

harm of the restricted drug is often cited as justification.
However, a landmark study published in 2007 – focused
on the United Kingdom, which has similar drug
classifications to the United States – showed virtually
no correlation between legal classification of harm and
actual harmfulness of any particular drug. Notably,
the study showed that the actual physical, mental, and
social harms of both marijuana and ecstasy were lesser
than those of alcohol and nicotine, even though the
former were criminalized and the latter were not. David
Nutt et al, “Development of a rational scale to assess the
harm of drugs of potential misuse,” The Lancet, Vol. 369,
No. 9566, pp 1047-1053 (assessing the potential harm
of various legal and illegal drugs of potential misuse,
and showing virtually no correlation between legal
classification of harm and actual harmfulness of a drug).
Scott O. Lilienfeld and Hal Arkowitz, “Why ‘Just Say No’
Doesn’t Work,” Scientific American, January 1, 2014,
accessed March 7, 2017, https://news.vice.com/article/
just-say-no-how-nancy-reagan-helped-america-losethe-war-on-drugs.
Paul Hayes, “Many people use drugs – but here’s
why most don’t become addicts,” The Conversation,
January 6, 2015, accessed on March 7, 2017, http://
theconversation.com/many-people-use-drugs-butheres-why-most-dont-become-addicts-35504. See
also National Institute on Drug Abuse, “Principles of
Drug Addiction Treatment: A Research-Based Guide,”
last updated December 2012, accessed March 7, 2017,
https://www.drugabuse.gov/publications/principlesdrug-addiction-treatment-research-based-guide-thirdedition/frequently-asked-questions/there-differencebetween-physical-dependence (arguing that there is a
difference between drug dependence and addiction,
and that some people who use drugs develop one, both,
or neither).
Arian Campo-Flores and Jeanne Whalen, “Needle
Exchanges Gain Currency,” The Wall Street Journal,
March 29, 2015, accessed February 17, 2017, https://
www.wsj.com/articles/needle-exchanges-gain-currencyamid-hiv-hepatitis-infections-in-drug-users-1427673026;
Drug Policy Alliance, “Law Enforcement Assisted
Diversion: Reducing the Role of Law Enforcement in
Local Drug Control,” February 2016, accessed February
17, 2017, http://www.drugpolicy.org/sites/default/files/
DPA%20Fact%20sheet_Law%20Enforcement%20
Assisted%20Diversion%20%28LEAD%29%20
_%28Feb.%202016%29.pdf. On December 18, 2015,
President Obama signed the 2016 Consolidated
Appropriations Act, allowing federal funds to be used for
some aspects of syringe exchange programs. See Human
Rights Watch and the American Civil Liberties Union,
“Every 25 Seconds: The Human Toll of Criminalizing Drug
Use in the United States,” October 2016, at footnote 28.
See Mark A.R. Kleiman, Legal Commercial Cannabis
Sales in Colorado and Washington: What Can We Learn?
(Washington D.C.: Brookings Institute, 2015); and John
Ingold, “Lawmakers in 11 States Approve Low-THC
Medical Marijuana Bills,” Denver Post, June 30, 2014,
accessed March 15, 2017, http://www.denverpost.com/
marijuana/.
Miami-Dade County Drug Court, accessed February 22,
2017, http://www.miamidrugcourt.com/.
Graduated sanctions can include more frequent
drug testing, inpatient detoxification and treatment,
additional court appearances, and short periods
of incarceration that may increase as an offender’s
infractions accumulate. To encourage participants’
continued compliance, drug courts also provide
incentives, such as fewer drug tests, fewer court

appearances, and possibly the dismissal of criminal
charges or reduced or set-aside sentences if the
program is successfully completed. U.S. DOJ, BJA, OJP,
“Defining Drug Courts: The Key Components,” January
1997, reprinted 2004, pp. 14-15; Douglas B. Marlowe,
“Integrating Substance Abuse Treatment and Criminal
Justice Supervision,” Science and Practice Perspectives,
National Institute on Drug Abuse of the National
Institutes of Health, August 2003, p. 7; U.S. DOJ, BJA,
OJP, “BJA Drug Court Discretionary Grant Program: FY
2010 Requirements Resource Guide,” p. 2; and NCJRS,
In the Spotlight: Drug Courts; Douglas B. Marlowe,
“Integrating Substance Abuse Treatment and Criminal
Justice Supervision,” Science and Practice Perspectives,
National Institute on Drug Abuse of the National
Institutes of Health, August 2003, p. 7.
15.	 National Drug Court Resource Center, “How Many Drug
Courts Are There?” accessed February 17, 2017, http://
www.ndcrc.org/content/how-many-drug-courts-arethere.
16.	 National Association of Drug Court Professionals, “Drug
Courts Work,” accessed February 17, 2017, http://www.
nadcp.org/learn/facts-and-figures.
17.	 Graduation requirements vary from drug court to drug
court. However, a core requirement for most courts
examined by PHR was a certain time frame during which
all drug tests for the participants are negative, including
alcohol testing and tests for prescribed medication. This
is not the case in some non U.S. drug courts.
18.	 See National Association of Drug Court Professionals,
“Defining Drug Courts: The Key Components”
(Washington, DC: U.S. Department of Justice, 1997),
accessed on March 31, 2017, http://www.ndci.org/sites/
default/files/nadcp/KeyComponents.pdf.
19.	 Lauren Kirchner, “Drug Courts Grow Up,” Pacific
Standard Magazine, July 27, 2015, accessed on February
17, 2017, https://psmag.com/drug-courts-grow-up276ed4bbd5f8#.8mv8crs3z, emphasis in original.
20.	 NADCP, “Research Update on Adult Drug Courts,”
Marlowe, Douglas B. JD, PhD, December 2010, accessed
on April 11, 2017, http://www.nadcp.org/sites/default/
files/nadcp/Research%20Update%20on%20Adult%20
Drug%20Courts%20-%20NADCP_1.pdf.
21.	 Shelli B. Rossman, Michael Rempel, John K. Roman
et al., “The Multi-Site Adult Drug Court Evaluation:
Study Overview and Design. Final Report: Volume 4”
(Washington: The Urban Institute, 2011), accessed March
31, 2017, http://www.urban.org/uploadedpdf/412354MADCE-Study-Overview-and-Design.pdf.
22.	 See Ciska Wittouck et al, “The Impact of Drug Treatment
Courts on Recovery: A Systematic Review,” The Scientific
World Journal, Volume 2013, accessed March 31, 2017,
https://www.hindawi.com/journals/tswj/2013/493679/.
23.	 According to a report released by the United Nations
Office on Drugs and Crime, heroin use in the United
States increased by 145 percent between 2007 and
end 2015. The U.S. Centers for Disease Control and
Prevention estimates that the number of overdose
deaths including opioids quadrupled from 1999 to
2015. See Susan Scutti, “Worldwide drug use steady,
but heroin on rise in U.S., U.N. report says,” CNN, June
23, 2016, accessed March 9, 2017, http://www.cnn.
com/2016/06/23/health/un-world-drug-report/; Centers
for Disease Control and Prevention, “Understanding the
Epidemic, Drug overdose deaths in the United States
continue to increase in 2015,” last updated December
16, 2016, accessed <arcj 15, 2017, https://www.cdc.gov/
drugoverdose/epidemic/.
24.	 Comprehensive Addiction and Recovery Act of 2016, P.L.
114-198, July 22, 2016.

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25.	 Naloxone is an opioid antagonist used to counter the
effects of opioid overdose. “Understanding Naloxone,”
Harm Reduction Coalition, accessed March 15, 2017,
http://harmreduction.org/issues/overdose-prevention/
overview/overdose-basics/understanding-naloxone/.
26.	 P.L. 114-198, Sec. 201.
27.	 P.L. 114-198, Sec. 103.
28.	 Sharon LaFraniere and Alan Rappeport, “Popular
Domestic Programs Face Ax Under First Trump Budget,”
New York Times, February 17, 2017, accessed March 15,
2017, https://www.nytimes.com/2017/02/17/us/politics/
trump-program-eliminations-white-house-budget-office.
html.
29.	 For example, in 2016, New Hampshire’s governor,
Maggie Hassan (now a U.S. Senator), signed legislation
establishing a statewide drug court program as part
of the state’s efforts to expand treatment and recovery
programs and address criminal recidivism related to the
opioid crisis. Maggie Hassan, “Combatting the Heroin
and Opioid Crisis: Federal Support for Those on the
Front Lines,” 2016, p. 12, accessed on March 15, 2017,
http://maggiehassan.com/wp-content/uploads/2016/09/
CombatingtheHeroinandOpioidCrisis.pdf.
30.	 Addiction Policy Forum, “Innovation Enforcement
Assisted Diversion (LEAD),” February 2017, accessed
March 15, 2017, http://media.wix.com/ugd/
bfe1ed_561f2ede90fe4c8f8250972ac015550a.pdf.
31.	 Shafaq Hasan, “Boston Considers Adopting Gloucester’s
“Angel” Program for Drug Offenders,” Nonprofit
Quarterly, June 17, 2015, accessed March 15, 2017,
https://nonprofitquarterly.org/2015/06/17/bostonconsiders-adopting-gloucesters-angel-program-fordrug-offenders/.
32.	 PHR interview with Melissa Guldrandsen, county
attorney in Belknap County, New Hampshire in
December, 2016: “I look for people who have mediumrange criminal records, with more drug and property
cases, we don’t have a hard rule that we don’t take
violent offenders, but I don’t want a hard and fast bad
guy in the group. It’s probably rather intuitive, I look at
the criminal history and their crimes and circumstances.
If someone is entrenched in criminal thinking over time,
I don’t want their victim of a new crime coming back to
me to say to me ‘why are you putting this person into
this program?’” “High-risk, high-need” participants have
been designated by the NADCP Adult Drug Court Best
Practice Standards manual as individuals who are both
diagnosed with an addiction disorder and at high risk for
criminal recidivism. In New Hampshire, several counties
have interpreted “high-risk” to also include people
charged with violent offenses.
33.	 Eric J. Miller, “Embracing Addiction: Drug Courts and the
False Promise of Judicial Interventionism,” Ohio State
Law Journal Vol. 65, 2004 pp. 1479-1576.
34.	 See American Society of Addiction Medicine, “Definition
of Addiction,” accessed May 9, 2017, http://www.asam.
org/quality-practice/definition-of-addiction.
35.	 Addiction has been defined as a chronic brain disease
by the American Society of Addiction Medicine, as
well as by the National Institute on Drug Abuse (NIDA)
and the National Institute on Alcohol Abuse and
Alcoholism (NIAAA): “Addiction is a chronic, often
relapsing brain disease … similar to other chronic,
relapsing diseases, such as diabetes, asthma, or heart
disease….” See National Institute on Drug Abuse,
“Understanding Drug Use and Addiction,” updated
August 2016, accessed February 22, 2017, https://www.
drugabuse.gov/publications/drugfacts/understandingdrug-use-addiction. See also McLellan AT, Lewis DC,
O’Brien CP, Kieber HD. Drug dependence, a chronic

Neither Justice Nor Treatment

medical illness: Implications for treatment, insurance,
and outcomes evaluation. Journal of the American
Medical Association. 2000;284 (13), pp. 1689–1695.
There has been considerable debate among health care
providers and medical researchers about the usefulness
of the “chronic disease concept” to explain substance
dependence or compulsive behavior of any kind. For
conflicting views see, e.g., Maia Szalavitz, “Why the New
Definition of Addiction, as ‘Brain Disease,’ Falls Short,”
TIME Magazine, August 16, 2011, accessed February
22, 2017, http://healthland.time.com/2011/08/16/
why-the-new-definition-of-addiction-as-brain-diseasefalls-short/, (arguing that labeling people who use drugs
with a chronic brain disease is harmful, stigmatizing,
and unsupported by science, which shows a majority
of people labeled with addiction as improving on their
own; and that, nevertheless, there is ample scientific
evidence to support the benefits of scheduled medical
treatment rather than a criminal justice response for
those who need it); and Gene Heyman, A Disorder of
Choice (Harvard University Press: Cambridge, 2010)
(arguing that addiction should not be treated as a
result of involuntary behavior, but that, rather, treating
addiction as a result of voluntary behavior (choice) that
results in poor long-term health outcomes provides a
viable approach to the prevention and treatment of drug
addiction).
36.	 BupPractice, “DSM 5 Criteria for Substance Use
Disorder,” accessed March 30, 2017, http://www.
buppractice.com/node/12351.
37.	 The American Association of Addiction Medicine
(ASAM) has developed criteria to match the severity
levels of substance use disorders with appropriate level
of care. These criteria have been validated by medical
researchers Marianne Stallvik and David R. Gastfriend,
“Predictive and convergent validity of the ASAM criteria
in Norway,” in Addict Res Theory, 2014; 22(6), pp.
515-23.
38.	 Antoine B Bouaihy, Thomas M. Kelly, and Carl Sullivan,
“Medications for Substance Use Disorders,” Soc Work
Public Health, 2013; 28(0) pp. 264-278, accessed April
12, 2017, https://www.ncbi.nlm.nih.gov/pmc/articles/
PMC3767185/.
39.	 World Health Organization, “WHO Model List of
Essential Medicines, April 2015 (amended November
2015),” (World Health Organization: Geneva, 2015),
accessed on March 24, 2017, http://www.who.int/
medicines/publications/essentialmedicines/EML_2015_
FINAL_amended_NOV2015.pdf.
40.	 New Hampshire Center for Excellence, “Substance Use
Disorder Treatment and Other Service Capacity in New
Hampshire,” 2014.
41.	 New Hampshire Center for Excellence, “Substance Use
Disorder Treatment and Other Service Capacity in New
Hampshire,” 2014, pp. 28-30.
42.	 Bureau of Drug and Alcohol Services (BDAS), New
Hampshire Center for Excellence, “2015-2016 Guidance
Document on Best Practices: Key Components for
Delivering Community-Based Medication-Assisted
Treatment Services for Opioid Use Disorders in New
Hampshire,” pp. 40.
43.	 PHR interviews with three drug court participants
in Palatka, Putnam County, FL, on February 7, 2017.
See also Opiate Addiction and Treatment Resource,
“Methadone Clinics – Florida,” last updated
October 2013, accessed April 10, 2017, http://www.
opiateaddictionresource.com/treatment/methadone_
clinic_directory/fl_clinics.

44.	 James Mulder, “In Syracuse it’s easier for addicts to get
heroin than medical treatment,” Syracuse.com, February
14, 2016, accessed April 12, 2017, http://www.syracuse.
com/health/index.ssf/2016/02/heroin_main.html.
45.	 Substance Abuse and Mental Health Services
Administration, “Apply to Increase Patient Limits,”
last updated February 9, 2017, accessed April 14,
2017, https://www.samhsa.gov/medication-assistedtreatment/buprenorphine-waiver-management/increasepatient-limits.
46.	 PHR interview with Dr. Laura Martin, My Care Syracuse,
Syracuse, NY, November 22, 2016.
47.	 PHR comparison of data. Certified prescriber data
via Substance Abuse and Mental Health Services
Administration, “Number of DATA-certified physicians,”
accessed May 8, 2017, https://www.samhsa.gov/
medication-assisted-treatment/physician-program-data/
certified-physicians; population data via Statistica.
com, accessed May 8, 2017; and drug use data via
SAMHSA, Center for Behavioral Health Statistics and
Quality, “Results from the 2015 National Survey on Drug
Use and Health: Detailed Tables,” accessed March 7,
2017, https://www.samhsa.gov/data/sites/default/files/
NSDUH-DetTabs-2015/NSDUH-DetTabs-2015/NSDUHDetTabs-2015.pdf.
48.	 A prescription medicine that contains buprenorphine
and naloxone.
49.	 PHR interview with Alex Casale, state court coordinator,
New Hampshire, December 6, 2016.
50.	 PHR interview with Richard, New York, August 25, 2016.
51.	 Cara Tabachnick, “Breaking Good: Vivitrol, a new drug
given as a monthly shot, is helping addicts stay clean,”
Washington Post, March 13, 2015, accessed on April
12, 2017, https://www.washingtonpost.com/lifestyle/
magazine/his-last-shot-will-a-monthly-jab-of-a-newdrug-keep-this-addict-out-of-jail/2015/03/05/7f0543547a4c-11e4-84d4-7c896b90abdc_story.html?utm_term=.
c8ef46060ac3.
52.	 PHR interview with David Adan, clinical supervisor,
Banyan Health Systems, Miami, February 17, 2017.
53.	 PHR interview with Shayanne, participant, Nashua drug
court, Hillsborough County, New Hampshire, December
2, 2016.
54.	 PHR interview with Jim, residential treatment center,
New York, August 25, 2016.
55.	 PHR interview with Richard, New York, August 25, 2016.
56.	 PHR interview with [name withheld], clinical director,
[name withheld], New York, August 24, 2016.
57.	 PHR phone interview with Emma Ketteringham, Bronx
Defenders, July 19, 2016.
58.	 OASAS, “Guidelines for Detoxification Triage,” at https://
www.oasas.ny.gov/admin/hcf/documents/detoxguide.
pdf (accessed on May 23, 2017).
59.	 Benjamin R. Nordstrom and Frances R Levin, “Treatment
of Cannabis Use Disorders: A Review of the Literature,”
American Journal on Addictions, Volume 16, 2007, issue
5, accessed March 31, 2017, http://www.tandfonline.
com/doi/figure/10.1080/10550490701525665.
60.	 PHR phone interview with Dr. Benjamin Nordstrom,
Phoenix House, New York City, August 5, 2016; and
with [name withheld], [clinic name withheld], New York,
August 5, 2016.
61.	 World Health Organization, “WHO Model List of
Essential Medicines, April 2015 (amended November
2015),” (World Health Organization: Geneva, 2015),
accessed March 24, 2017, http://www.who.int/
medicines/publications/essentialmedicines/EML_2015_
FINAL_amended_NOV2015.pdf.

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62.	 Harlan Matusow et al, “Medication assisted treatment
in US drug courts: Results from a nationwide survey
of availability, barriers, and attitudes,” in Journal of
Substance Abuse Treatment, May-June 2013, Vol 44,
issue 5, pp. 473-480.
63.	 Joanne Csete and Holly Catania (2013). “Methadone
treatment providers’ views of drug court policy and
practice: a case study of New York State,” Harm
Reduction Journal 10:35, accessed February 24, 2017,
http://www.harmreductionjournal.com/content/10/1/35.
64.	 Alison Knopf, “SAMHSA bans drug court grantees from
ordering participants off MAT,” Alcoholism and Drug
Abuse Weekly, February 16, 2015, accessed March 7,
2017, http://www.alcoholismdrugabuseweekly.com/
Article-Detail/samhsa-bans-drug-court-grantees-fromordering-participants-off-mat.aspx.
65.	 Alison Knopf, “SAMHSA bans drug court grantees from
ordering participants off MAT,” Alcoholism and Drug
Abuse Weekly, February 16, 2015, accessed March 7,
2017, http://www.alcoholismdrugabuseweekly.com/
Article-Detail/samhsa-bans-drug-court-grantees-fromordering-participants-off-mat.aspx.
66.	 Memorandum in support of bill S4239B, available at
http://www.nysenate.gov/legislation/bills/2015/S4239B.
67.	 NY Crim. Proc. Law §§ 216.05(5) and (9)(a).
68.	 PHR letter to Judge Cele Hancock, dated February
7, 2017, on file with PHR. Only drug courts receiving
federal funding are required to allow MAT, some statefunded grants are beginning to introduce new rules to
require allowance of MAT in order to receive funding.
69.	 PHR interview with Danielle Gravina, MAT Case
Manager, Queens Felony Treatment Court Enhanced
Program, Queens Treatment Alternatives for Safe
Communities, July 14, 2016.
70.	 Shannon Gwin Mitchell et al, “Incarceration and opioid
withdrawal: The experiences of methadone patients and
out-of-treatment heroin users,” Journal of Psychoactive
Drugs, June 2009, Vol. 41(2), pp. 145-152, accessed
March 31, 2017, https://www.ncbi.nlm.nih.gov/pmc/
articles/PMC2838492/.
71.	 PHR interview with Hanif Rashid, court liaison with the
Diversion and Treatment Program (DATP), Miami, FL,
February 16, 2017.
72.	 PHR interview with Joanna Caldwell, risk and compliance
manager, South Florida Behavioral Health Network,
Miami, FL, February 17, 2017.
73.	 PHR interview with Dr. Thomas Robinson, psychologist,
Jackson Hospital, Miami, FL, February 16, 2017.
74.	 PHR phone interview with Keith Brown, director, Law
Enforcement Assisted Diversion, Albany, NY, July 15,
2016.
75.	 National Center for Addiction and Substance Abuse
at Columbia University (CASA), “Addiction Medicine:
Closing the Gap Between Science and Practice,” June
2012, pp. 172: “A survey of private health plans found
that while only 16 percent of private insurance offering
imposed lifetime limits on addiction treatment, 94
percent had annual limits on addiction treatment, and
89 percent had annual limits for inpatient services.”
76.	 Ben Allen, “How We Got Here: Treatment Addiction
in 28 Days,” NPR Weekend Edition, October 1, 2016,
accessed March 20, 2017, http://www.npr.org/sections/
health-shots/2016/10/01/495031077/how-we-got-heretreating-addiction-in-28-days.
77.	 PHR phone interview with Dr. Joshua D. Lee, assistant
professor, NYU, attending physician, Bellevue hospital,
New York City, March 30, 2017.

Neither Justice Nor Treatment

78.	 PHR interview with [name withheld], assistant district
attorney’s office, New York County, November 21, 2016.
Note that Medicaid does not cover all treatment options
for substance dependence, and that coverage varies
by state.
79.	 PHR phone interview with Dr. Joshua D. Lee, assistant
professor, NYU, attending physician, Bellevue hospital,
New York City, March 30, 2017.
80.	 Colleen L. Barry and Haiden A. Huskamp, “Moving
beyond parity—mental health and addiction care under
the ACA,” New England Journal of Medicine 2011;
365(11), pp. 973-5; and Keith Humphreys and Richard
G. Frank, “The Affordable Care Act will revolutionize
care for substance use disorders in the United States,” in
Addiction, 2014. 109 (12), pp. 1957-8.
81.	 HealthCare.gov, “Mental Health and Substance Abuse
Coverage,” accessed April 10, 2017, https://www.
healthcare.gov/coverage/mental-health-substanceabuse-coverage/.
82.	 National Center on Addiction and Substance Abuse at
Columbia University, “Addiction Medicine: Closing the
Gap Between Science and Practice,” June 2012, pg. 170,
“Treatment for Addiction, Medicaid” ; Kaiser Family
Foundation, “Medicaid Pocket Primer,” accessed on April
10, 2017, http://kff.org/medicaid/fact-sheet/medicaidpocket-primer/; Kristen Beronio, Rosa Po, Laura Skopec,
and Sherry Glied, “Affordable Care Act Expands Mental
Health and Substance Use Disorder Benefits and Federal
Parity Protections for 62 Million Americans,” February
20, 2013, accessed February 24, 2017, https://aspe.hhs.
gov/report/affordable-care-act-expands-mental-healthand-substance-use-disorder-benefits-and-federal-parityprotections-62-million-americans.
83.	 Tami Mark et al, “Medicaid coverage of medications
to treat alcohol and opioid dependence,” Journal of
Substance Abuse Treatment 2015 Aug, pp. 1-5.
84.	 Alison M. Diaper, Fergus D. Law, and Jan K. Melichar,
“Pharmacological strategies for detoxification,” British
Journal of Clinical Pharmacology, Feb 2014, Vol 77(2),
pp. 302-314, accessed March 31, 2017, https://www.
ncbi.nlm.nih.gov/pmc/articles/PMC4014033/; The
National Center on Addiction and Substance Abuse,
“Addiction Medicine: Closing the Gap between Science
and Practice,” June 2012, CASA Columbia National
Advisory Commission on Addiction Treatment, p. 107
“Chronic Disease Management,” accessed April 10, 2017,
http://www.centeronaddiction.org/addiction-research/
reports/addiction-medicine-closing-gap-betweenscience-and-practice.
85.	 Kirstin P. Frescoln, “Engaging with the Affordable Care
Act: Implications and Recommendations for Adult Drug
Court Professionals,” National Association of Drug Court
Professionals, May 2014, accessed March 20, 2017,
http://www.ndcrc.org/sites/default/files/17673_nadcp_
ntk_aca_v2_2_2.pdf.
86.	 Kristen Beronio, Rosa Po, Laura Skopec, and Sherry
Glied, “Affordable Care Act Expands Mental Health and
Substance Use Disorder Benefits and Federal Parity
Protections for 62 Million Americans,” February 20,
2013, accessed February 24, 2017, https://aspe.hhs.gov/
report/affordable-care-act-expands-mental-health-andsubstance-use-disorder-benefits-and-federal-parityprotections-62-million-americans.
87.	 PHR interview with Ed Fox, director, Project SafePoint,
Albany, New York, August 26, 2016.
88.	 National Association of Drug Court Professionals,
Best Practices Standards, p.5, accessed February 24,
2017, http://www.nadcp.org/sites/default/files/nadcp/
AdultDrugCourtBestPracticeStandards.pdf.

89.	 PHR interview with David Betancourt, public defender,
Strafford county, New Hampshire, December 1, 2016.
90.	 PHR interview with [name withheld], prosecutor’s office,
New York county, November 21, 2016.
91.	 PHR interview with Alex Parsons, Managing Defense
Attorney, Cheshire County Drug Court, New Hampshire,
December 8, 2016.
92.	 PHR interview with Dana Patterson, Alachua county
drug court, Florida, February 9, 2017.
93.	 Drug Policy Alliance, “Drug Courts Are Not the Answer:
Toward a Health-Centered Approach to Drug Use,”
2011, accessed April 10, 2017, https://www.drugpolicy.
org/docUploads/Drug_Courts_Are_Not_the_Answer_
Final2.pdf; Justice Policy Institute, “Addicted to Courts:
How a Growing Dependence on Drug Courts Impacts
People and Communities,” March 2011, accessed
April 10, 2017, http://www.justicepolicy.org/uploads/
justicepolicy/documents/addicted_to_courts_final.pdf.
94.	 PHR interview with [name withheld], prosecutor’s office,
New York county, November 21, 2016.
95.	 PHR phone interview with Judge Tina Nadeau, Chief
Justice, New Hampshire Supreme Court, July 26, 2016.
96.	 PHR phone interview with [name withheld], [clinic
name withheld] August 5, 2016. PHR phone interview
with Jose Villanueva, clinical manager, Camino Nuevo
treatment center, Albany, New York, November 9, 2016.
This point was repeated by several public defenders.
PHR phone interview with Emma Ketteringham, Bronx
Defenders, July 19, 2016; and PHR phone interview with
Regina Tebrugge, attorney, Sarasota, June 8, 2016.
97.	 NADCP Best Practice Standards, “Incentives, Sanctions
and Therapeutic Adjustments,” 2015, pp. 27-28.
98.	 Osceola County Participant Handbook, copy provided to
PHR by Osceola County, FL on February 3, 2017; Orange
County Participant Handbook, copy provided to PHR by
Orange County, Florida, on February 6, 2017.
99.	 Putnam County Participant Handbook, last updated
October 2016, accessed April 7, 2017, http://www.
circuit7.org/Program%20and%20Services/Drug_Court_
Putnam_handbook.pdf. PHR observed the Putnam
County drug court on February 7, 2017, but drug court
staff declined to be interviewed for this report.
100.	PHR interview with Judge James Carroll, Belknap county
drug court, New Hampshire, December 6, 2016.
101.	PHR interview with Stacey Lanza, former treatment
provider, Phoenix House, Cheshire County, New
Hampshire, December 8, 2016.
102.	PHR interview with Asa Scott, senior clinical director and
administrator of program development, Addiction Care
Interventions, November 17, 2016.
103.	All drug court participants waive doctor-patient
confidentiality as a condition for participation in the
drug court program. While legal under U.S. law, this
does not take away from the seriousness of the privacy
interference, nor does it follow that any discussion of
personal drug use in open court contributes to relapse
prevention or recovery.
104.	See National Association of Drug Court Professionals,
“Defining Drug Courts: The Key Components”
(Washington, DC: U.S. Department of Justice, 1997),
accessed March 31, 2017, http://www.ndci.org/sites/
default/files/nadcp/KeyComponents.pdf.
105.	PHR phone interview with David Lucas, treatment
coordinator, Toronto drug court, Canada, November
18, 2016.
106.	PHR phone interview with David Lucas, treatment
coordinator, Toronto drug court, Canada, November
18, 2016.

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107.	National Institute on Drug Abuse, “Drugs, Brains, and
Behavior: The Science of Addiction,” July 2014, accessed
July 25, 2016, https://www.drugabuse.gov/publications/
drugs-brains-behavior-science-addiction/treatmentrecovery (“The chronic nature of the disease means
that relapsing to drug abuse at some point is not only
possible, but likely.”); Jeanne L. Obert et al., “Client’s
Handbook: Matrix Intensive Outpatient Treatment for
People With Stimulant Use Disorders,” US Department
of Health and Human Services, Substance Abuse and
Mental Health Services Administration, 2006, accessed
July 26, 2016, http://www.ct.gov/dmhas/lib/dmhas/pgs/
PGIntegratedMatrixClientHandbook.pdf.
108.	Shelli B. Rossman, John K. Roman et al, “The Multi-Site
Adult Drug Court Evaluation: The Impact of Drug Courts
(Volume 4),” Urban Institute, Justice Policy Center, 2011,
accessed March 14, 2017, http://www.courtinnovation.
org/sites/default/files/documents/MADCE_4.pdf.
109.	PHR interview with [name withheld], mental health
coordinator and counselor at [name withheld], August
25, 2016.
110.	PHR phone interview with Robert Gasser, former Grafton
county drug court coordinator, July 18, 2016.
111.	PHR interview with Connie Flagg, case manager,
Cheshire county drug court, December 8, 2016.
112.	PHR interview with Alex Casale, state drug court
coordinator, New Hampshire, December 9, 2016.
113.	PHR phone interview with Keith Brown, director, Albany
Law Enforcement Assisted Diversion, July 15, 2016.
114.	PHR phone interview with David Lucas, treatment
coordinator, Toronto drug court, Canada, November
18, 2016.
115.	For a thorough analysis of sentencing for drug-related
offenses, including possession of minimal amounts of
illicit drugs, see Human Rights Watch and the American
Civil Liberties Union, “Every 25 Seconds: The Human Toll
of Criminalizing Drug Use in the United States,” October
2016.
116.	States have the possibility of modifying or opting out of
this ban. Of the three states studied in this report, New
York and New Hampshire have opted out of a lifetime
ban on food stamps and cash assistance, and Florida
imposes a modified ban. Eli Hager, “Six States Where
Felons Can’t Get Food Stamps,” The Marshall Project,
February 4, 2016, accessed March 10, 2017, https://
www.themarshallproject.org/2016/02/04/six-stateswhere-felonscan-t-get-food-stamps#.6zkAJf4qq.
117.	See Federal Student Aid, “Students With Criminal
Convictions,” (undated), accessed March 10, 2017,
https://studentaid.ed.gov/sa/eligibility/criminalconvictions#drug-convictions.
118.	Rebecca Vallas and Sharon Dietrich, “One Strike
and You’re Out: How We Can Eliminate Barriers to
Economic Security and Mobility for People with
Criminal Records,” Center for American Progress,
December 2014, accessed March 10, 2017, https://cdn.
americanprogress.org/wpcontent/uploads/2014/12/
VallasCriminalRecordsReport.pdf.
119.	American Civil Liberties Union, “State Criminal Reenfranchisement Laws (Map),” 2016, accessed March
10, 2017, https://www.aclu.org/map/state-criminal-reenfranchisement-lawsmap.
120.	The Clemency Report, “Reefer sanity: States abandon
driver’s license suspensions for drug offenses,”
September 14, 2014, accessed March 10, 2017, http://
clemencyreport.org/drivers-license-suspensions-drugoffenses-state-state-list.

Neither Justice Nor Treatment

121.	PHR phone interview with Emma Ketteringham, Bronx
Defenders, New York City, July 19, 2016. The point was
reiterated by prosecutors and drug court coordinators
in New Hampshire and Florida. Public defenders also
preferred to refer prison-bound clients, rather than
those with lesser sentences, to drug court because of the
intensive, and sometimes invasive, nature of the drug
court program. Public defenders said they often advised
clients to serve jail sentences of less than a year in many
cases, rather than sign up for drug court.
122.	PHR phone interview with Emma Ketteringham, Bronx
Defenders, New York City, July 19, 2016.
123.	Fl. Stat. Title XXIX, Chapter 397, § 397.675. Similar laws
exist in Kentucky, Ohio, and Indiana.
124.	Fl. Stat. Title XXIX, Chapter 397, § 397.675.
125.	PHR interview with Brian, Tampa, February 13, 2017.
126.	PHR interview with Debra Thomas, clinical liaison,
DACCO, Tampa, Florida, February 14, 2017.
127.	PHR interview with Régent (Reggie) Champigny, mental
health counselor, Greater Nashua Mental Health Center,
Nashua, New Hampshire, December 2, 2016.
128.	Dan Werb et al, “The effectiveness of compulsory drug
treatment,” International Journal of Drug Policy 28
(2016), pp. 1-9.
129.	See section below on human rights obligations and U.S.
legal protections.
130.	PHR interview with Dr. Todd Patton, medical director,
El Rio, Osborne Association, New York City, October
25, 2016.
131.	International Covenant on Civil and Political Rights
(ICCPR), article 17. The ICCPR was ratified by the United
States in 1992. The United States has not taken out
any reservations or issued any declarations with regard
to its understanding of the right to privacy under the
Covenant.
132.	Human Rights Committee, “General Comment No. 16:
Article 17 “The Right To Privacy,” 1998, U.N. Doc. INT/
CCPR/CEC/662.E para. 4.
133.	International Covenant on Economic Social and Cultural
Rights (ICESCR), article 12. The ICESCR was signed by
the United States in 1977. While signature to a treaty
does not imply the same obligation of implementation
as ratification or accession, it indicates a willingness
to avoid violating the basic principles of the treaty.
According to the Vienna Convention on the on Law of
Treaties, article 18: “[a] State is obliged to refrain from
acts which would defeat the object and purpose of a
treaty when: (a) it has signed the treaty. …”
134.	Committee on Economic Social and Cultural Rights,
“General Comment 14, “The right to the highest
attainable standard of health,” U.N. Doc E/C.12/2000/4
(2000), para. 12(b).
135.	World Medical Association, Declaration of Lisbon on the
Rights of the Patient, as revised in 2005 and reaffirmed
in 2015, para. 8.
136.	42 CFR Part 2.
137.	The confidentiality regulations set forth in 42 CFR Part
2 are not applicable to fully privatized substance use
treatment centers. The majority of treatment centers that
drug courts refer to are covered by these regulations.
138.	The National Association of Drug Court Professionals
appears keen to publicize this point in its guidance to
drug court professionals. See, e.g., Bill Meyer, “Being a
Legal Eagle: Confidentiality, Ethical, and Constitutional
Requirements,” National Association of Drug Court
Professionals, 2011, accessed March 17, 2017, http://
www.nadcp.org/sites/default/files/2014/CG-11.pdf.

139.	42 CFR Part 2, 2) Part 2 Restrictions, a. Disclosure; see
also 45 CFR 164.512 (a), (e).
140.	ICESCR, article 12 (the right to the highest attainable
standard of health). Committee on Economic Social
and Cultural Rights, “General Comment 14, The right
to the highest attainable standard of health,” U.N. Doc
E/C.12/2000/4 (2000), para. 8 (specifying the right to be
free from non-consensual medical treatment).
141.	ICCPR, article 9(1) (the right to liberty and security of
person).
142.	ICCPR, article 7 (the right not to be subjected to
torture or to cruel, inhuman or degrading treatment or
punishment, including, in particular, the right not to
be subjected without their free consent to medical or
scientific experimentation).
143.	World Medical Association, Declaration of Lisbon on the
Rights of the Patient, as revised in 2005 and reaffirmed
in 2015, para. 3.
144.	T. Pape, “Legal and ethical considerations of informed
consent” Journal of the Association of perioperative
Nurses 1997;65, pp. 1122-1127.
145.	See e.g. In re Brown, 478 So.2d 1033, 1040 (Miss. 1985);
and Cruzan v. Harmon, 760 S.W.2d 408, 417 (Mo. 1988).
146.	World Medical Association, Declaration of Lisbon on the
Rights of the Patient, as revised in 2005 and reaffirmed
in 2015, para. 1(c).
147.	International Working Group, “Dual loyalty and
human rights in health professional practice: Proposed
guidelines and institutional mechanisms,” PHR, 2002, at
introduction.
148.	International Working Group, “Dual loyalty and
human rights in health professional practice: Proposed
guidelines and institutional mechanisms,” PHR, 2002,
p.12.
149.	International Working Group, “Dual loyalty and
human rights in health professional practice: Proposed
guidelines and institutional mechanisms,” PHR, 2002,
part II.

Physicians for Human Rights

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Physicians for
Human Rights
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For more than 30 years,
Physicians for Human Rights
(PHR) has used science and
the uniquely credible voices
of medical professionals to
document and call attention to
severe human rights violations
around the world. A Nobel
Peace Prize co-laureate, PHR
employs its investigations
and expertise to advocate for
persecuted health workers
and facilities under attack,
prevent torture, document
mass atrocities, and hold those
who violate human rights
accountable.

Through evidence,
change is possible.

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